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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


Kelly's  Federal  Prohibition 
Digest 


Including  Such  Citations  as  May  be  Useful  in  the  Trial 

of  Cases  Arising  Under  the  National 

Prohibition  Act. 


Also  Forms 


BERNARD  KELLY 

OF  THE  PEORIA  BAR 

PEORIA,   ILLINOIS 


BURDETTE  J.  SMITH  &  COMPANY 

CHICAGO.  ILLINOIS 

19  2  2 


Kz'i^^i  ic 


COPYRIGHT    1922 
BERNARD  KELLY 


PREFACE. 


It  is  to  be  hoped  that  this  work  will  meet  an  existing  de- 
mand for  a  digest  on  Prohibition  Laws.  An  effort  has  been 
made  to  include  all  eases  arising  under  the  Act,  supplemented 
by  such  additional  citations  as  may  be  of  use  in  actual  trial 
work. 

The  author  has  constantly  kept  in  mind  that  one  of  the 
purposes  to  be  served  by  this  book  is :  that  it  may  afford  ready 
and  quick  reference  to  the  law  on  its  particular  subject.  Not 
only  in  the  office  but  in  the  court  room.  Consequently  he  has 
tried  to  make  it  as  compact  as  possible  consistent  with 
thoroughness  of  treatment. 

This  book  is  intended  as  an  adjunct  to  the  many  excellent 
works  on  Federal  Law.  It  is  to  be  used  with  these  works  and 
in  no  sense  is  meant  to  replace  them. 

In  presenting  this  digest  to  the  profession  the  author  feels 
fully  the  need  for  indulgence.  However,  he  has  faith  in  the 
magnanimity  of  his  brother  members  of  the  bar. 

BERNARD  KELLY. 

Peoria,  111.,  November  24,  1922. 


TABLE  OF  CONTENTS. 

Accomplices    7 

Admissions    8 

Argument    9 

Arrest 11 

Bail 12 

Bar  ton  conviction 14 

Bill  of  exceptions 15 

Bill  of  Particulars 16 

Books    17 

Character    17 

Charge  of  the  court 18 

Confiieation 20 

Conflict  of  laws 20 

Conspiracy 22 

Constitutional    24 

Definitions 32 

Department  heads 33 

Entraptment 34 

Evidence  admissible 35 

Exceptions  and  objections 37 

Forfeiture   37 

Habeas  corpus 39 

Impeachment    41 

Indictment  and  information 43 

Injunction 52 

Instructions 58 

Intent  60 

Jeopardy 61 

Jury 62 

Motion  to  direct  verdict 64 

New  trial QQ 

Nuisance    67 

Officers 72 

Opinion    73 

Penalties ,  .  73 

Permits 75 

Police   power 76 


Possession    76 

Powers  of  congress 79 

Presumption 80 

Purchaser 81 

Regulations  81 

Removal  of  liquor 82 

Repeal  of  former  statutes 83 

Return  of  property 88 

Sale 91 

Search  and  seizure 92 

Search  warrant 104 

Sentence 108 

Storage 110 

Sufficiency  of  evidence  to  convict 110 

Tax  112 

Transportation   114 

Witnesses    120 

Forms    . . 

Forms  used  in  abatement  of  nuisance  under  Section  22, 

Title  II,  of  Volstead  Act 124 

Forms  used  to  restrain  collector  from  collection  of  tax 

under  Section  35,  Title  II,  of  Volstead  Act 145 

Forms  pertaining  to  search 158 

Fjrms  to  be  used  in  application  for  return  of  property 

seized    165 

Forms  to  be  used  in  application  for  reopening  premises 

closed  by  injunction 169 

National  Prohibition  Act 172 

Act  supplemental  to  Prohibition  Act 203 

Constitution  of  the  United  States 207 


ACCOMPLICES. 

1.  Concealing  Knowledge  of  Crime: — 

A  person  does  not  become  an  accomplice  by  reason  of  the 
fact  that  he  fails  to  disclose  until  sometime  after,  that 
a  crime  was  committed. 

Bird  V.  United  States,  187  U.  S.,  118. 

2.  Definition : — 

One  persuading  another  to  commit  a  crime  is  an  accomp- 
lice. 

Ackley  v.  United  States,  200  Fed.,  217. 

An  accomplice  is  an  associate  in  guilt  in  the  commission  of 
a  crime,  a  participant  in  the  offense  as  an  accessory  or 
principle. 

Singer  v.  United  States,  278  Fed.,  415. 

3.  Entrapment  by  Ofl&cers: — 

Agents  wrote  letters  to  a  party  under  suspicion  of  violating 
postal  laws  with  intention  of  using  correspondence  as  a 
decoy.    Agents  are  not  accomplices. 

Shepard  v.  United  States,  160  Fed.,  584. 

4.  Purchase  of  Liquor: — 

A  purchaser  of  intoxicating  liquor  is  not  an  accomplice 
under  the  Act. 

Singer  v.  United  States,  278  Fed.,  415. 

5.  Ride  on  Uncorroborated  Testimony: — 

The  federal  courts  recognize  no  rule  of  law  forbidding 
conviction  on  the  testimony  of  an  accomplice  alone  if 
such  testimony  is  believed  by  the  jury.  However,  it 
is  better  practice  for  the  court  to  instruct  the  jury 
to  be  cautious  in  accepting  such  testimony  unless  cor- 
roborated. 

Wagman  v.  United  States,  269  Fed.,  568; 

Holmgren  v.  United  States,  217  U.  S.,  509-523-24; 

Caminetti  v.  United  States,  242  U.  S.,  470-495; 

Ray  V.  United  States,  265  Fed.,  257; 

United  Sattes  v.  Richards,  149  Fed.,  443. 


8  ACCOMPLICES— ADMISSIONS 

6.  The  Rtile  as  to  Corroboration: — 

For  rule  as  to  corroboration  and  extent  of  credence  to  be 
given  testimony  of  accomplices,  see : 

Knoell  V.  United  States,  239  Fed.,  16; 
United  States  v.  Fischer,  245  Fed.,  477; 
Patterson  v.  United  States,  246  Fed.,  833; 
Bosselman  v.  United  States,  239  Fed.,  82. 

In  a  case  where  government  relied  upon  uncorroborated 
testimony  of  a  witness  and  he  contradicted  himself  sev- 
eral times  on  the  stand  and  gave  other  evidences  of  the 
unsatisfactory  nature  of  his  testimony,  court  was  war- 
ranted in  taking  case  from  the  jury. 

United  States  v.  Murphy,  253  Fed.,  404. 

7.  Uncorroborated : — 

An  accomplice  need  not  be  corroborated. 

Harrington  v.  United  States,  267  Fed.,  97; 
Freed  v.  United  States,  266  Fed.,  1012; 
Rosen  v.  United  States,  271  Fed.,  651; 
f  Ahern  v.  United  States,  158  Fed.,  606; 

Richardson  v.  United  States,  181  Fed.,  1. 

B.    When  an  Accomplice  May  Testify : — 

Where  two  persons  were  jointly  indicted  and  tried,  one  of 
them  may  at  his  own  request  be  examined  by  the  govern- 
ment. 

Wolfson  V.  United  States,  101  Fed.,  430. 

9.  When  Considered  as  Principal: — 

Where  two  or  more  parties  join  in  an  unlawful  undertak- 
ing or  enterprise  there  is  no  master  and  no  servant,  but 
each  is  liable  as  principal  in  a  criminal  action  to  punish- 
ment for  violation  of  the  law.  It  does  not  matter  whose 
hand  gave  out  the  whiskey  or  who  served  it.  It  was  a 
common  undertaking. 

Heitler  v.  United  States,  280  Fed.,  703; 

Hitchman  Coal  and  Coke  Co.  v.  Mitchell,  245  U.  S.,  229. 

ADMISSIONS. 

10.  Admissions  as  Sufficient  Proof: — 

In  a  prosecution  for  maintaining  a  nuisance  under  the 
National  Prohibition  Act  of  October  28th,  1919,  it  was 


ADMISSIONS— ARGUMENT  9 

held  that  an  admission  by  the  defendant  that  he  was 
o-^Tier  and  proprietor  of  the  place  was  sufficient  proof  of 
such  fact. 

Wiggins  V.  United  States,  272  Fed.,  41. 

11.  Admissions  by  Attorney: — 

Statements  made  by  attorney  in  course  of  an  argument 
are  not  admissible  against  client  in  another  suit. 
Miller  v.  United  States,  133  Fed.,  337. 

12.  Admissions  While  Under  Arrest: — 

Accused  after  being  arrested  and  being  warned  as  to  the 
effect  of  any  statements  he  might  make  afterwards  made 
admissions  which  were  written  down  in  shorthand  and 
signed.     Held  admissible. 

Bak  Kun  v.  United  States,  195  Fed.,  53. 

13.  Against  Interest: — 

Defendant  made  statements  he  could  implicate  another  in 
the  offense.  Held  admissible  as  a  statement  against  in- 
terest. 

Adamson  v.  United  States,  184  Fed.,  714. 

14.  Confession  as  Distinguished  from  Admission: — 

Statements  not  subject  to  rules  governing  admission  of 
confession. 

Dimmick  v.  United  States,  116  Fed.,  825. 

15.  Silence  as  an  Admission: — 

Fact  that  party  did  not  reply  to  charges  made  in  a  letter 
does  not  make  fact  or  letter  admissible. 

Packer  v.  United  States,  106  Fed.,  906. 

16.  Statements  Made  to  Magistrate : — 

Statements  made  by  the  accused  do  not  become  inad- 
missible although  made  to  magistrate  who  afterwards 
held  the  preliminary  hearing. 

Hardy  v.  United  States,  186  U.  S.,  224. 

ARGUMENT. 

17.  Appeal  to  Prejudice: — 

Court  has  right  to  stop  counsel  who  is  appealing  to  race 
feeling  in  his  ai-gument. 

United  States  v.  Battle,  209  U.  S.,  36. 


10  ARGUMENT 

Language  used  for  purpose  of  creating  prejudice  is  im- 
proper. 

Johnston  v.  United  States,  154  Fed.,  445. 

18.  Comment  on  Appearance: — 

If  attorney  for  accused  comments  on  appearance  of  tht 
defendants  prosecuting  attorney  has  right  also  to  com- 
ment on  his  appearance  in  retaliation. 

United  States  v.  German,  115  Fed.,  987. 

19.  Comment  on  Failure  of  Accused  to  Testify: — 

Attorney  for  the  government  said  in  course  of  his  argu- 
ment "why  didn't  the  defendant  put  a  witness  on  the 
stand,"  held  not  be  objectionable  because  of  the  fact 
the  defendant  had  not  testified. 

Jackson  v.  United  States,  102  Fed.  473. 

20.  General  Rule:— 

As  a  rule  improper  remarks  are  not  sufficient  to  reverse 
a  cause  if  court  has  stopped  the  remarks  and  admonished 
the  jury  to  disregard  them  in  their  deliberations. 
Ammermon  v.  United  States,  185  Fed.,  1. 

21.  Improper  but  Not  Prejudicial: — 

Defendants  were  referred  to  as  "Billingsley  Gang."  The 
court  said  while  the  term  was  rather  a  harsh  one  and 
ought  not  to  be  used  by  counsel  for  the  government,  yet 
inasmuch  as  it  appeared  from  the  evidence  that  the  de- 
fendants were  organized  for  unlawful  purposes  it  was 
not  prejudicial  error. 

Billingsley  v.  United  States,  274  Fed.,  86. 

22.  Limitation  of  Argument: — 

The  court  has  the  right  to  limit  argument  within  the  bounds 
of  a  reasonable  discretion. 

Wagmon  v.  United  States,  269  Fed.,  569. 

23.  Misquoting  the  Evidence : — 

Where  a  prosecuting  attorney  in  his  argument  stated 
''that  when  defendant  was  arrested  for  having  liquor 
in  his  possession"  and  there  had  been  no  testimony  that 
the  defendant  did  have  liquor  in  his  possession  under 
these  circumstances  the  court  should  have  stopped  the 
prpsecuting  attorney  and  instructed  the  jury  not  to  con- 
sider such  remarks  in  arriving  at  their  verdict. 
Hunter  v.  United  States,  264  Fed.,  831. 


ARGUMENT— ARREST  11 

The  prosecuting  attorney  should  be  careful  not  to  travel 
outside  the  testimony  when  presenting  the  case  to  the 
jury.  However,  an  appellate  court  will  not  reverse  the 
case  on  this  ground  alone  unless  it  is  reasonably  appar- 
ent that  the  defendant  suffered  damage  or  was  preju- 
diced by  such  remark. 

Hunter  v.  United  States,  264  Fed.,  831. 

24.  Scope  of  Argument : — 

Fairly  wide  scope  is  given  attorneys  for  both  government 
and  defense  and  the  reviewing  court  will  not  take  cogni- 
zance of  court 's  refusal  to  instruct  jury  as  to  remarks  of 
counsel  w^here  there  has  been  a  clear  abuse  of  the  free- 
dom generally  permitted  in  arguments. 

Chadwick  v.  United  States,  141  Fed.,  225. 

AEREST. 

25.  After  Arrest: — 

Immediateely  after  arrest  prisoner  should  be  taken  before 
magistrate. 

Von  Arx  v.  Shafer,  241  Fed.,  649. 

26.  Arrest  of  United  States  Officer:— 

If  United  States  marshal  acts  by  authority  of  United 
States  court  he  is  immune  from  arrest  by  state  authori- 
ties 

Anderson  v.  Elliott,  101  Fed.,  609. 

27.  Arrest  Without  Warrant: — 

For  authority  to  arrest  without  a  warrant  for  violation  of 
the  revenue  laws,  viz.,  operating  illicit  distillery,  etc., 
see  Act  of  May  28th,  1896. 
It  was  the  established  rule  at  common  law  that  arrest  for 
misdemeanor  could  not  be  made  without  warrant. 
John  Bad  Elk  v.  United  States,  177  U.  S.,  529; 
Kurtz  V.  Moffit,  115  U.  S.,  487; 
Pritchett  v.  Sullivan,  182  Fed.,  480. 

28.  Attempt  to  Conceal  Crime: — 

Per.son  trying  to  coneoal  evidence  of  crime  subject  to  im- 
mediate arrest  without  warrant. 

United  States  v.  Fuellhort,  106  Fed.,  911. 

29.  Exhibiting  Warrant: — 

Officer  need  not  exhibit  warrant  if  he  has  it  in  his  posses- 
sion. 

O'Halloran  v.  McGuirck,  167  Fed.,  493. 


12  ARREST— BAIL 

30.  Liquor  on  Person: — 

Person  with  liquor  on  his  person  may  be  arrested  without 
warrant  and  liquor  found  used  as  evidence. 
United  States  v.  Snyder,  278  Fed.,  650. 

31.  Under  Arrest  by  State  Authorities: — 

Where  person  is  under  arrest  of  state  authorities  Federal 
court  will  not  interfere  unless  it  is  to  save  accused  some 
right  or  privilege  under  the  Federal  Constitution. 
Ex  Parte  Rogers,  138  Fed.,  961. 

32.  Violation  of  Law  in  Presence  of  Ofl&cer : — 

Warrant  held  not  necessary  in  South  Carolina  where  vio- 
lation of  liquor  law  was  in  the  presence  of  an  officer  and 
he  the  officer  made  the  arrest. 

Elrod  V.  Moss,  278  Fed.,  123; 

Chandler  v.  Rutherford,  101  Fed.,  775. 

Under  the  Federal  as  well  as  state  statutes  to  justify  search 

and  seizure  or  arrest  without  warrant  the  officer  must 

have  personal  and  direct  knowledge  through  his  hearing, 

sight  or  other  senses  of  the  commission  of  the  crime  by 

the  accused. 

Elrod  V.  Moss,  278  Fed.,  123. 

33.  When  Felony  Has  Been  Committed : — 

Arrest  warranted  when  there  is  reasonable  grounds  to  be- 
lieve that  a  felony  has  been  committed. 
Prickett  v.  Sullivan,  184  Fed.,  480. 

BAIL. 

34.  Bail  After  Conviction: — 

Circuit  Court  of  Appeals  may  admit  prisoner  to  bail  pend- 
ing assignment  of  error. 

McKnight  v.  United  States,  113  Fed.,  451. 

Prisoner  may  be  admitted  to  bail  after  conviction  pending 
motion  for  rehearing. 

Walsh  V.  United  States,  174  Fed.,  621. 

This  rule  does  not  apply  when  judgment  is  final. 
Walsh  V.  United  States,  174  Fed.,  621. 

For  rule  as  to  bail  after  conviction,  see : 

United  States  v.  John,  254  Fed.,  794; 
United  States  v.  Murphy,  261  Fed.,  751. 


BAIL  13 

35.  Definition: — 

For  defiuitiou  of  Bail,  see : 

United  States  v.  Case  8,  Blatchf.,  250; 
Federal  Case  No.  14,  742. 

36.  Excessive  Bail: — 

"Excessive  bail  shall  not  be  required/' 

Eighth  Amendment  to  Federal  Constitution. 

37.  Petition  for  Writ  Dismissed : — 

Prisoner  defeats  right  if  he  gives  excessive  bail  before  pe- 
tition for  writ  of  habeas  corpus  has  been  heard. 
Johnson  v.  Hay,  227  U.  S.,  445. 

38.  Previous  Arrest  as  Cause  for  Denial: — 

Defendant  had  been  convicted  several  times  on  same  in- 
dictment. Held  as  not  being  sufficient  reason  for  denial 
of  bail. 

McKnight  v.  United  States,  113  Fed.,  451. 

39.  Remedy  for  Excessive  Bail : — 

If  bail  is  excessive  remedy  is  in  habeas  corpus. 
United  States  v.  Brawner,  7  Fed.,  86. 

40.  Right  to  Bail  :— 

For  a  rule  as  to  right  of  prisoner  to  be  admitted  to  bail, 
see: 

United  States  v.  Rice,  192  Fed.,  720. 

41.  Signing  of  Bail,  Recognizance:— 
Recognizance  need  not  be  signed. 

United  States  v.  Adams  Express  Co.,  229  U.  S.,  381. 

Bail  must  be  signed. 

United  States  v.  Adams  Express  Co.,  229  U.  S.,  381. 

42.  Surety  May  Arrest : — 

Surety  is  jailer  of  principal  in  bail  bond  and  may  make 
arrest  if  occa.sion  requires. 

Ewing  V.  United  States,  240  Fed..  241. 

43.  Who  May  Take:— 

When  clerk  or  deputy  may  take  acknowledgement  and 
ju.stification  of  parties  to  bail  bond. 

United  States  v.  Enaus,  2  Fed.,  147. 


14  BAR  TO  CONVICTION 

BAR  TO  CONVICTION. 

44.  Bar  in  Case  of  Conspiracy : — 

Time  of  limitation  commences  to  run  in  case  of  conspiracy 
from  time  (first)  act  is  committed. 

United  States  v.  Bradford,  148  Fed.,  413. 

45.  Fugitive  from  Justice: — 

One  fleeing  from  justice  not  entitled  to  benefit  of  statute 
of  limitation  and  fact  that  he  left  state  without  intention 
of  escaping  arrest  is  immaterial. 
In  Re  Bruse,  132  Fed.  390. 

46.  General  Statute  of  Limitation: — 

Three  year  statute  of  limitations  as  regards  crimes  was  not 
repealed  by  the  Pure  Food  and  Drug  Act. 

United  States  v.  J.  L.  Hopkins  &  Co.,  199  Fed.,  649. 

47.  Repeal  of  Statute  a  Bar: — 

A  repeal  of  statute  before  a  conviction  is  a  bar  to  further 
proceedings. 

Maresca  v.  United  States,  277  Fed.,  727. 

48.  Two  Cases  at  Same  Time: — 

When  two  suits  of  like  nature  for  the  same  purpose  and 
between  the  same  parties  are  pending  at  the  same  time 
defendants  in  the  second  suit  may  plead  the  pendency 
of  the  first  suit  as  a  plea  in  abatement,  but  when  the  first 
suit  has  proceeded  to  judgment  it  is  no  longer  simply  a 
matter  in  abatement  but  a  bar,  a  complete  defense  to  the 
prosecution  of  the  second  suit. 

McGovern  et.  al.  v.  United  States,  280  Fed.,  73. 

49.  Prosecution  in  State  Court  as  a  Bar : — 

Proceedings  in  a  state  court  are  not  a  bar  to  subsequent 
prosecutions  in  the  Federal  court  for  same  transactions. 
United  States  v.  Holt,  270  Fed.,  639; 
United  States  v.  Bostown,  273  Fed.,  535; 
United  States  v.  Regan,  273  Fed.,  727; 

Contra  see : 

United  States  v.  Peterson  et.  al.,  268  Fed.,  864. 

50.  Prosecution  Under  Act  as  Effecting  Revenue  Laws: — 

A  conviction  under  the  act  for  manufacturing  liquor  with- 
out a  permit  does  not  bar  prosecution  for  violation  of 


BAR  TO  CONVICTION— BILL  OF  EXCEPTIONS  15 

revenue  laws.    Sections  3258-3260-3279. 

United  States  v.  Sacein  Rosohana,  Farhat,  269  Fed.,  33. 

BILL  OF  EXCEPTIONS. 

51.  After  Term  Has  Expired: — 

Court  has  no  authority  to  extend  time  for  filing  bill  of  ex- 
ceptions after  term  has  expired. 

Maresca  et.  al.  v.  United  States,  277  Fed.,  727. 

Unless  there  is  agreement  or  time  fixed  for  filing. 
United  States  v.  Thibodeaux,  232  Fed.,  91. 

Bill  must  be  filed  by  end  of  term  even  if  last  day  of  term 
falls  on  Sunday  or  holiday. 

Maresca  et.  al.  v.  United  States,  277  Fed.,  727. 

52.  Computation: — 

Where  an  act  is  required  to  be  done  in  a  certain  number 
of  days  after  or  before  a  fixed  time,  Sunday  is  to  be 
included  in  computing  number  of  days  when  it  exceeds 
seven;  if  it  is  less  than  seven  days  Sunday  must  be  ex- 
cluded and  the  same  rule  applies  where  holidays  inter- 
vene. 

Maresca  et.  al.  v.  United  States,  277  Fed.,  727. 
(See  page  734  for  brief.) 

53.  Extension  of  Time  to  File: — 
Authority  of  court  to  make  extension. 

Camden  Iron  Works  v.  Safer,  223  Fed.,  611. 

54.  Mandamus : — 

On  mandamus  of  court  to  sign  bill. 

Camden  Iron  Works  v.  Safer,  223  Fed.,  611. 

55.  Need  for  Bill:— 

Circuit  Court  of  Appeals  has  no  way  of  determining  evi- 
dence without  bill  of  exceptions. 

Maresca  et.  al.  v.  United  States,  277  Fed.,  727. 

56.  Objectionable  Matter  Must  be  Complete: — 

When  complaint  is  made  in  bill  of  exceptions  as  to  remarks 
of  judge  remarks  must  be  given  in  full. 

Garst  V.  United  States,  180  Fed.,  339. 


16  BILL    OF   EXCEPTION— BILL    OF    PARTICULARS 

57.  Presumption : — 

If  no  bill  of  exceptions  is  on  file  it  is  presumed  by  the  court 
that  evidence  was  sufficient. 

Maresca  et.  al.  v.  United  States,  277  Fed.,  727. 

58.  Recital : — 

A  recital  in  a  bill  adds  nothing  to  the  evidence  contained 
therein. 

Baultbee  v.  International  Paper  Co.,  229  Fed.,  951. 

59.  Right  to  Bill  is  Statutory  :— 

Right  to  bill  of  exceptions  in  a  criminal  case  is  statutory. 
Maresca  et.  al.  v.  United  States,  277  Fed.,  727. 

60.  Settlement  of  Bill  :— 

Bill  of  exceptions  does  not  necessarily  have  to  be  settled 
before  filing  of  the  writ  and  assignment  of  errors. 

Old  Nick  Williams  Co.  v.  United  States,  132  Fed.,  925. 

61.  Sufficient  to  Constitute  Bill:— 

An  informal  paper  held  sufficient  to  constitute  bill  of  ex- 
ceptions. 

Long  V.  Atlantic  Coast  Line  R.  Co.,  238  Fed..  919. 

62.  Written  and  Printed  Exhibits : — 

It  is  improper  to  describe  written  exhibits  in  the  bill,  they 
should  be  set  out  in  full. 

Balliet  v.  United  States,  129  Fed.,  689. 

BILL  OF  PARTICULARS. 

63.  Entitled  to  Bill:— 

Defendant  held  entitled  to  bill  of  particulars. 
Kirby  v.  United  States,  174  U.  S.,  47. 

64.  Faulty  Averment  Not  Cured  by  Bill : — 

If  an  indictment  fails  to  make  a  material  averment  it  will 
not  be  cured  by  a  bill  of  particulars. 

United  States  v.  Bayand,  16  Fed.,  376. 

65.  Not  Entitled  to  Bill  of  Particulars: — 

Defendant  requested  bill  of  particulars  at  his  second  trial, 
it  appearing  in  the  first  trial  the  prosecution  had  pre- 
sented fully  the  facts  involved  in  the  case.  It  was  held 
defendant  was  not  entitled  to  the  bill  of  particulars 

under  the  circumstances. 

Claflrdini  v.  United  States,  266  Fed.,  471. 


BOOKS— CHARACTER  17 

BOOKS. 

66.  Court  Can  Impound: — 

Although  books  and  papers  have  been  illegally  seized  by 
officers  of  the  government  and  the  property  of  a  third 
person,  the  federal  court  has  the  right  and  authority 
to  impound  them  when  they  are  essential  as  part  of  the 
proof  in  a  criminal  case. 

United  States  v.  McHie,  196  Fed.,  586. 

67.  Fictitious  Names  Used  in  Account  Books : — 

A  book  account  is  admissible  in  evidence  although  entries 
were  carried  in  fictitious  names  if  it  can  be  shown  that 
purchases  of  whiskey,  etc.,  were  made  under  the  fic- 
titius  names  used  in  such  accounts. 

Billingsley  v.  United  States,  274  Fed.,  86. 

68.  Not  Necessary  to  Identify  Each  Item: — 

It  is  not  necessary  to  identify  each  item  in  a  book  account 
to  make  such  book  account  admissible  in  evidence. 
Billingsley  v.  United  States,  274  Fed.,  86. 

Books  held  admissible  although  defendant  did  not  keep 
them. 

Parker  v.  United  States,  203  Fed.,  950. 

69.  Official  Records: — 

Defendant  was  charged  with  carrying  on  business  of  whole- 
sale liquor  dealer  without  paying  tax.     He  claimed  he 
was  agent  for  brother.     Exclusion   of  printed   official 
record  showing  operation  of  the  distillery  held  improper. 
Day  V.  United  States,  220  Fed.,  818. 

70.  Technical  Books:— 
Technical  books  held  admissible. 

United   States   v.   Two   Cases   of   Chloro-Naptholeum, 
217  Fed.  477. 

CHARACTER. 

71.  Evidence  of  Good  Character: — 

Evidence  of  good  character  is  always  competent  in  a  crim- 
inal case  and  when  it  is  established  becomes  a  fact  for 
the  jui-y  to  consider  with  all  other  facts  established  in 


18  CHARACTER— CHARGE  OP  THE  COURT 

arriving  at  a  determination  as  to  the  guilt  or  innocence 
of  the  accused. 

Searway  v.  United  States,  184  Fed.,  716; 

Breese  v.  United  States,  143  Fed.,  250. 

72.  Good  Character  as  Raising  Reasonable  Doubt : — 

The  court  did  not  err  in  refusing  to  instruct  that  good 
character  was  sufficient  in  itself  to  raise  question  of 
reasonable  doubt. 

Singer  v.  United  States,  278  Fed.,  415. 

Good  character  as  raising  reasonable  doubt. 
King  V.  United  Sattes,  112  Fed.,  988; 
Smitkin  v.  United  States,  265  Fed.,  489; 
Rosen  v.  United  States,  271  Fed.,  651. 

73.  Morality  and  Sobriety: — 

Morality  and  sobriety  held  irrelevant. 

Harper  v.  United  States,  170  Fed.,  385. 

74.  Presumption : — 

There  is  no  presumption  of  good  character  which  can  be 
considered  by  the  jury  if  no  evidence  at  all  is  offered  as 
to  the  defendant's  character. 

Price  V.  United  States,  218  Fed.,  149. 

CHARGE  OF  THE  COURT. 

75.  Assumption  of  Fact  Warranted: — 

Assumption  of  fact  warranted  if  such  fact  was  admitted 

by  the  defendant. 

May  V.  United  States,  157  Fed.,  1. 

76.  Bill  of  Exceptions  Must  Contain  Court's  Ruling: — 
Where  it  is  contended  that  the  court  erred  in  refusing 

an  instruction  the  bill  of  exceptions  must  contain  the 

court's  refusal  if  the  appellate  court  is  to  pass  upon  the 

question. 

Feigen  v.  United  States,  279  Fed.,  107. 

77.  Comment  on  Evidence : — 

A  judge  of  a  Federal  court  has  the  right  to  comment  on 
the  evidence  in  delivering  his  charge  to  the  jury.  How- 
ever, his  statements  should  be  such  as  will  not  interfere 
with  the  free  exercise  of  the  independent  judgment  of 

the  jurors. 

Rudd  V.  United  States,  173  Fed.,  912. 


CHARGE  OF  THE  COURT  19 

78.  Comment  on  Character: — 

If  there  is  no  evidence  as  to  general  character  or  reputation 
of  defendant,  court  will  not  be  permitted  to  comment 
unfavorably  on  defendant's  character. 

Mueller  v.  United  States,  106  Fed.,  892, 

79.  Error  to  Assume  Fact : — 

It  is  error  for  the  court  in  giving  his  charge  to  assume  the 
existence  of  a  fact. 

Dolan  V.  United  States,  123  Fed.,  52. 

80.  Expression  of  Opinion  on  Evidence: — 

Great  caution  should  be  used  by  the  court  in  expressing 
an  opinion  on  the  evidence. 

Garst  V.  United  States,  180  Fed.,  339; 
Foster  v.  United  States,  188  Fed.,  305. 

81.  Giving  Opinion  as  to  Guilt  of  Accused: — 

In  the  course  of  his  charge  the  district  judge  used  the  fol- 
lowing language :  "Now  you  have  heard  the  case.  The 
court's  opinion  is  that  the  defendant  is  guilty  of  the 
crime  charged.  In  a  federal  court  the  court  may  inform 
the  jury  what  his  opinion  is  of  the  guilt  or  innocence 
of  the  defendant,  but  I  want  you  to  understand  the  ques- 
tion of  his  guilt  or  innocence  is  solely  for  the  jury  to 
decide,  it  is  not  for  the  court.  The  court  has  no  part  in 
deciding  the  guilt  or  innocence  of  the  defendant,  but  the 
court  may  if  it  seems  desirable  inform  the  jury  of  his 
opinion.  Now,  gentlemen,  you  will  take  this  case.  You 
have  a  duty,  a  public  duty  to  perform,  to  decide  this  case 
upon  your  wants  and  your  responsibilities,  to  decide  on 
your  conscience,  to  decide  whether  or  not  this  man  had 
whiskey  unlawfully  in  his  possession."  The  court  held 
this  was  not  error. 

Dillon  V.  United  States,  279  Fed.,  639; 

Soblowski  V.  United  States,  271  Fed.,  294; 

Johnson  v.  United  States,  270  Fed.,  168; 

Oppenheim  v.  United  States,  241  Fed.,  625; 

Hart  V.  United  States,  84  Fed.,  799; 

Menefee  v.  United  States,  236  Fed.,  826. 

Contra : 

Cummings  v.  United  States,  232  Fed.,  844; 
Bruse  v.  United  States,  108  Fed.,  804; 
Rudd  V.  United  States,  173  Fed.,  912; 
Sandals  v.  United  States,  213  Fed.,  569. 


20  CONFISCATION— CONFLICT  OF  LAWS 

For  United  States  Supreme  Court  decisions  see : 

Horning  v.  District  of  Columbia,  254  U.  S.,  135; 
Allies  V.  United  States,  157  U.  S.,  117; 
Hyde  v.  United  States,  225  U.  S.,  347; 
Anderson  v.  United  States,  170  U.  S.,  481. 

These  latter  cases  support  the  court  in  its  right  to  express 
an  opinion. 

82.  Time  for  Objections: — 

Objections  to  a  charge  of  the  court  must  be  made  at  the 
time  of  trial. 

Cabiale  et.  al.  v.  United  States,  276  Fed.,  769. 

CONFISCATION. 

83.  Confiscation  Not  Implied: — 

Confiscation  will  not  be  implied  or  raised  by  inference  in 
the  construction  of  provisions  of  law  which  have  ample 
field  for  other  operations  in  effecting  a  purpose  clearly 
indicated  and  declared. 

Street  v.  Lincoln  Safe  Deposit  Co.,  254  U.  S.,  88.     (41 
S.  Ct.  31.) 

84.  Liquor  Owned  Before  Enactment: — 

The  first  section  of  the  eighteenth  amendment  does  not 
indicate  any  purpose  to  confiscate  liquor  lawfully  owned 
at  the  time  the  amendment  became  effective  and  which 
the  owner  intended  to  use  in  a  lawful  manner. 

Street  vs.  Lincoln  Safe  Deposit  Co.,  254  U.  S.  88.     (41 
S.  Ct.  31.) 

CONFLICT   OF   LAWS. 

85.  City  Ordinances: — 

Provisions  of  a  city  ordinance  permitting  the  use  of  intoxi- 
cating liquor  for  non-beverage  purposes,  although  in- 
valid because  of  being  in  conflict  with  the  National 
Prohibition  Act,  does  not  prevent  prosecution  under 
the  ordinance  for  illegal  sale  of  liquor. 

Ex  parte  Crookshank,  269  Fed.,  980; 

Woods  V.  City  of  Seattle,  270  Fed.,  315. 

86.  Conflict  with  Federal  Act  :— 

A  state  can  pass  laws  to  enforce  prohibition  when  they  do 
not  come  in  conflict  with  federal  legislation. 
Ex  parte  Ramsey  et  al.,  265  Fed.,  950; 
Ex  parte  Finegan,  270  Fed.,  665. 


CONFLICT  OF  LAWS  21 

87.  Diflference  in  Penalties: — 

The  fact  that  there  is  a  difference  in  punishments  in  the 
state  law  from  that  of  the  federal  law  does  not  consti- 
tute conflict. 

Ex  parte  Ramsey  et  al.,  265  Fed.,  950. 

The  fact  that  state   legislation   carries   a   more   rigorous 
penalty  does  not  invalidate  the  statute. 
Ex  parte  Crookshank,  269  Fed.,  980. 

88.  Federal  Act  as  Affects  State  Laws: — 

The  power  conferred  on  the  federal  government  by  the 
adoption  of  the  eighteenth  amendment  to  prohibit  liquor 
traffic  did  not  affect  the  existing  power  of  the  states  to 
prohibit  traffic  in  intoxicating  liquors. 
Ex  parte  Crookshank,  269  Fed.,  980. 

89.  Federal  Amendment  Takes  Supersedence: — 

Laws  enacted  by  congress  pursuant  to  authority  granted 
under  the   eighteenth   amendment    of   the    constitution 
take  supersedence  of  inconsistent  state  legislation. 
Ex  parte  Crookshank,  269  Fed.,  980. 

Federal  amendment  takes  supersedence  over  prior  state 
statutes. 

Ex  parte  Ramsey  et  al.,  265  Fed.,  950. 

90.  Powers  Delegated  City: — 

Same  power  delegated  to  the  city  within  the  state. 
Ex  parte  Crookshank,  269  Fed.,  980. 

91.  Powers  of  State: — 

A  state  has  the  right  and  authority  to  prohibit  acts  not 
prohibited  under  the  National  Prohibition  Act. 
Woods  V.  City  of  Seattle,  270  Fed.,  315. 

92.  Prosecution  in  Federal  and  State  Courts: — 

Both  the  federal  and  state  court  may  act  against  the  same 
person  for  the  same  acts.  Thus  the  conviction  of  a 
defendant  in  the  state  court  can  not  prevent  liis  prose- 
cution in  the  federal  court. 

United  States  v.  Holt,  270  Fed.,  639; 

Gilbert  v.  Minne.sota,  254  U.  S.,  325; 

Halter  v.  Nebraska,  205  U.  S.,  34. 


22  CONFLICT  OF  LAWS— CONSPIRACY 

93.  Punishment  Under  State  Law: — 

Possession  of  liquor  being  a  violation  of  a  state  law  as 
well  as  tlie  federal  law,  the  possessor  may  be  punished 
as  provided  in  the  state  statute. 

Ex  parte  Ramsey  et  al.,  265  Fed.,  950. 

94.  State  Law  Not  in  Conflict: — 

The  fact  that  a  state  law  was  in  existence  when  the 
eighteenth  amendment  was  adopted  does  not  affect  it 
where  there  is  nothing  contained  in  the  law  which 
conflicts  with  the  federal  enactment.  It  is  merely  an 
additional  instrument  Avhich  the  state  supplies  in  the 
effort  to  make  prohibition  effective. 

Vigliotti  V.  Commonwealth  of  Pennsylvania  (42  S.  Ct., 

330); 
National  Prohibition  Cases,  253  U.  S.,  350. 

A  state  law  prohibiting  the  sale  of  spirituous  and  intoxi- 
cating liquors  without  reference  to  their  alcoholic  con- 
tents without  a  license  having  first  been  obtained,  but 
not  requiring  the  issuance  of  a  license  or  making  the 
sales  under  the  law  valid  was  held  as  not  to  be  in 
conflict  with  either  constitutional  amendment  eighteen 
or  the  National  Prohibition  Act. 

Vigliotti  V.  Commonwealth  of  Pennsylvania  (42  S.  Ct., 
330). 

95.  State  Law  Valid  if  Consistent: — 

A  state  law  is  valid  and  is  not  int  erf  erred  with  by  the 
eighteenth  amendment  unless  it  is  repugnant  to  or  in- 
consistent with  the  provision  of  the  federal  act. 
Ex  parte  Crookshank,  269  Fed.,  980. 

Legislation  which  tends  to  defeat  prohibition  is  uncon- 
stitutional. 

Ex  parte  Crookshank,  269  Fed.,  980. 

CONSPIRACY. 

96.  Act  of  One  Act  of  Both:— 

The  act  of  one  is  the  act  of  both  if  done  in  pursuance  of 
conspiracy. 

Tacon  v.  United  States,  270  Fed.,  88. 


CONSPIRACY  23 

•97.    Definition:— 

A  conspiracy  is  a  combiuation  betAveeu  two  or  more  per- 
sons to  do  a  criminal  or  unlawful  act  or  a  lawful  act 
by  criminal  or  unlawful  means. 

Lawlor  v.  Loeme,  209  Fed.,  721;   affirmed,  235  U.  S., 

522; 
Mitchell  V.  Hitchman  Coal  &  Coke  Co.,  214  Fed.,  685. 

Conspiracy  as  defined  by  revised  statute  5440  distin- 
guished from  common  laAv  offenses. 

Ryan  v.  United  States,  216  Fed.,  13. 

98.  Indictment   for   Conspiracy  to   Violate   War   Time   Act 
Held  Good  :— 

Where  an  indictment  charges  conspiracy  to  use  and  sell 
distilled  spirits  for  beverage  purposes  and  the  defend- 
ants did  make  sales  between  July  1st,  1919,  and  Novem- 
ber 15th,  1919,  it  was  held  to  charge  an  offense  under 
the  war  act. 

Maresca  et  al.  v.  United  States,  277  Fed.,  727. 

Indictment  held  sufficient. 

Violette  et  al.  v.  United  States,  278  Fed.,  163. 

99.  Indictment  Held  Insufficient: — 

In  a  charge  of  conspiracy  the  indictment  in  the  first  count 
charged  that  at  the  time  and  place  stated  the  defendant 
and  two  others  did  "unlawfully  and  knowingly  com- 
bine, conspire,  confederate  and  agree  to  commit  an 
offense  against  the  United  States;  that  is  to  say,  to 
violate  Title  II  of  the  National  Prohibition  Act  in  this, 
to-wit:  that  the  said  "persons,  naming  them"  did  then 
and  there  po.ssess  certain  intoxicating  liquors,  to-wit, 
about  two  hundred  cases  of  intoxicating  liquor  contrary 
to  the  provisions  of  said  act. ' '  The  second  count  charged 
that  the  same  persons  at  the  same  time  and  place 
"unlawfully  and  knoAvingly  did  possess  certain  intoxi- 
cating liquors,  to-wit,  about  two  hundred  cases  of 
Cuban  cognac.  Held  insufficient,  as  neitlier  count 
charged  any  offense  under  the  laws  of  United  States,  as 
said  counts  do  not  set  forth  how  and  in  what  manner 
the  alleged  possession  of  intoxicating  liquor  was  unlaw- 
ful nor  do  either  of  the   counts  mention  any  state  of 


24  CONSPIRACY— CONSTITUTIONAL 

facts  showing  that  the  alleged  possession  was  accom- 
panied by  such  a  purpose  or  intent  or  was  under  such 
circumstances  as  to  render  it  a  violation  of  the  law. 
Hilt  et  al.  v.  United  States,  279  Fed.,  421. 

100.  Merger  of  Offenses: — 

A  misdemeanor  which  is  the  object  of  a  conspiracy  is  not 
merged  in  the  latter  offense  which  is  also  a  misdemeanor 
nor  is  the  offense  of  conspiracy  merged  in  the  consum- 
mated misdemeanor. 

Berkowitz  v.  United  States,  93  Fed.,  452; 

Steigman  v.  United  States,  220  Fed.,  63. 

Where  defendants  were  charged  with  conspiracy  to  com- 
mit a  felony  it  was  held  that  the  merger  of  the  con- 
spiracy in  the  completed  felony  was  an  affirmative 
defense,  and  that  it  was  not  necessary  for  the  indictment 
to  negative  the  commission  of  the  completed  felony. 
United  States  v.  Sherlln,  212  Fed.,  343. 

101.  Object  of  the  Conspiracy: — 

Indictment  must  contain  allegation  that  act  was  done  "to 
effect  the  object  of  the  conspiracy."  It  is  not  sufficient 
to  saj^  act  was  done  pursuant  to  said  unlawful  con- 
spiracy. 

United  States  v.  Dowllng,  278  Fed.,  630. 

102.  Overt  Act:— 

Proof  of  one  overt  act  is  sufficient  under  the  indictment. 
Tacon  v.  United  States,  270  Fed.,  88. 

It  is  not  error  to  admit  evidence  of  other  overt  acts  than 
those  specifically  mentioned  in  the  indictment. 
Houston  V.  United  States,  217  Fed.,  852. 

CONSTITUTIONAL. 

103.  Act  Extends  to  Territorial  Limits : — 

Constitutional  amendment  18,  section  1,  is  operative 
through  the  entire  territorial  limits  of  the  United 
States  and  binds  all  legislative  bodies,  courts,  public 
officers  and  individuals  within  these  limits  and  of  its 
own  force,  invalidates  every  legislative  act  whether  by 


CONSTITUTIONAL  25 

congress,  by  a  state  legislature  or  territorial  assembly 
which  authorizes  or  sanctions  what  that  section  forbids. 
State  of  Rhode  Island  v.  Palmer,  253  U.  S.,  350   (40 
S.  Ct.,  486). 

104.  Concurrent  Power: — 

The  second  section  of  the  eighteenth  amendment,  the  one 
declaring  "the  congress  and  several  states  shall  have 
concurrent  power  to  enforce  this  article  by  appropriate 
legislature,"  does  not  enable  congress  or  the  several 
states  to  defeat  or  thwart  the  prohibition,  but  only  to 
enforce  it  by  appropriate  means. 

State  of  Rhode  Island  v.  Palmer,  253  U.  S.,  350   (40 
S.  Ct,  486). 

The  words  concurrent  power  used  in  the  second  section 
do  not  mean  joint  power  or  require  that  legislation 
thereunder  by  congress  to  be  effective  is  being  approved 
or  sanctioned  by  the  several  states  or  any  of  them. 

State  of  Rhode  Island  v.  Palmer,  253   U.  S.,  350    (40 
S.  Ct.,  486). 

105.  Constitutionality: — 

The  constitutionality  of  an  act  of  congress  is  a  question 
for  the  court. 

Griesebieck  Bros.  Brewery  Co.  v.  Moore,  262  Fed.,  582. 

The  Volstead  Act  is  constitutional. 

National  Prohibition  Cases,  253  U.  S.,  350. 

If  it  is  not  clearly  apparent  that  a  law  is  unconstitutional 
it  should  be  upheld. 

Piel  Bros.  v.  Day,  278  Fed.,  225; 

United    States    v.    United    Shoe    Machinery    Co.,    234 
Fed.,  127. 

War  Time  Act  is  constitutional. 

Rose  V.  United  States,  274  Fed.,  245; 
Ruppert  V.  Caffey,  251  U.  S.,  264; 
Hamilton  v.  Distilleries  Co.,  251  U.  S.,  146. 

The  National  Prohibition  Act  is  not  unconstitutional 
because  section  3  of  Title  IT  provides  that  no  person 
.shall  possess  any  intoxicating  liquor  after  the  eightcMMith 
amendment  goes  into  effect,  except  as  authorized  and 
permitted  by  tlie  m'.\,  although  such  intoxicating  liquors 
were  lawfully  acMjuired  prior  to  that  time. 
Rose  V.  United  States,  274  Fed.,  245. 


26  CONSTITUTIONAL 

If  unconstitutional  section  can  be  disregarded,  balance  of 
act  is  not  affected  by  unconstitutionality  of  part. 
Rose  V.  United  States,  274  Fed.,  245; 
See,  also,  National  Prohibition  Cases,  253  U.  S.,  350. 

106.  Due  Process  of  Law : — 

There   is  no    abrogation   of   due   process   of  law  by   the 
eighteenth  amendment  of  the  constitution. 
United  States  v.  Crossen,  264  Fed.,  459. 

To  enforce  collection  of  invalid  tax  is  to  take  property 

without  due  process  of  law. 

J.  &  A.  Freigberg  Co.  v.  Dawson  et  al.,  274  Fed.,  420. 

A  statute  making  location  of  a  still  or  distilling  apparatus 
on  premises  prima  facie  evidence  of  notice  on  the  part 
of  the  person  in  possession  of  the  premises  does  not 
deny  due  process  of  law  or  is  it  unconstitutional. 
Hawes  v.  State  of  Georgia  (42  S.  Ct.,  204). 

The  abatement  of  a  nuisance  under  the  National  Prohibi- 
tion Act  does  not  constitute  the  taking  of  property 
without  due  process  of  law. 

Lewinsohn  v.  United  States,  278  Fed.,  421. 

107.  Eighteenth  Amendment  Not  in  Conflict  with  Fifth : — 

Eighteenth  amendment  is  not  in  conflict  with  power  to 
amend  as  given  in  article  five  of  the  constitution. 

Christian  Feigenspan  Inc.  v.  Bodine,  264  Fed.,  189. 

108.  Equal  Protection  of  the  Law; — 

There  is  no  deprivation  of  equal  protection  of  the  law 
merely  because  those  who  owti  and  store  liquor  in  other 
states  do  not  have  to  pay  a  tax,  the  fourteenth  amend- 
ment does  not  insure  that  state  laws  of  taxation  shall 

be  the  same. 

J.  &  A.  Freigberg  Co.  v.  Dawson  et  al.,  274  Fed.,  420. 
(See  Opinion,  page  430.) 

109.  Intoxicating  Liquor: — 

In  defining  "liquor"  and  "intoxicating  liquor"  the 
National  Prohibition  Act,  Title  II,  provides  that  the 
definition  of  such  liquor  or  intoxicating  liquor  shall  not 
extend  to  dealcoholized  wine  or  other  liquids  or  bever- 
ages containing  less  than  one-half  of  one  per  centum 


CONSTITUTIONAL  27 

of  alcohol  by  volume  if  made  as  described  in  section 
thirty-seven  of  the  act  and  is  not  kno\A'n  as  beer,  ale  or 
porter.  Consequently  a  beverage  within  the  provisions 
of  this  act  cannot  be  brought  within  it  by  any  regula- 
tions issued  by  the  commissioner  of  internal  revenue. 

Oertel  Co.  v.  Gregory,  District  Attorney,  et  al.,  270 
Fed.,  789. 

The  definition  of  "intoxicating  liquor"  as  including  all 

liquors,    liquids    or   compounds    containing   one-half    of 

one  per  centum  or  more  of  alcohol  by  volume  is  not 

such  a  definition  as  may  be  declared  arbitrary  and  void. 

Christian  Feigenspan  Inc.  v.  Bodine,  264  Fed.,  189. 

110.  Jeopardy : — 

Double  jeopardy  provision  of  the  constitution  is  not  vio- 
lated by  the  section  of  the  National  Prohibition  Act 
which  provides  punishment  for  a  violation  of  an  injunc- 
tion thereunder. 

Lewinsohn  v.  United  States,  278  Fed.,  421. 

111.  Legislature: — 

Article  five  of  the  constitution  provides  that  a  proposed 
amendment  shall  be  valid  "when  ratified  by  the  legisla- 
ture of  three-fourths  of  the  several  states."  The  word 
legislature  has  reference  to  the  then  recognized  law 
making  body  of  the  state  and  the  validity  of  an  amend- 
ment ratified  by  three-fourths  of  the  several  states 
cannot  be  effected  by  state  laws  which  permit  or  pro- 
vide for  a  referendum  vote  on  the  acts  of  its  legislature. 
Christian  Feigenspan  Inc.  v.  Bodine,  264  Fed.,  189. 

112.  Limitation: — 

A  constitutional  amendment  is  not  invalid  because  it 
places  a  limitation  on  individual  action  which  cannot 
be  changed  by  the  will  of  the  majority. 

Christian  Feigenspan  Inc.  v.  Bodine,  264  Fed.,  189. 

113.  Motive  :— 

The  court  in  determining  the  validity  of  the  law  does  not 
attempt  to  inquire  into  the  motive  of  the  law  making 
body  nor  in  the  wisdom  of  the  legislature. 

Hamilton  v.  Kentucky  Distilleries  and  Warehouse  Co., 
251  U.  S.,  146   (40  S.  Ct.,  106). 


28  CONSTITUTIONAL 

114.  Necessity : — 

It  is  not  necessary  that  a  resolution  proposing  an  amend- 
ment should  expressly  declare  that  there  is  a  necessity. 
Christian  Felgenspan  Inc.  v.  Bodlne,  264  Fed.,  189. 

115.  No  Division  of  Power  Between  Congress  and  States: — 

Constitutional  amendment  eighteen,  section  two,  does  not 
divide  the  power  to  enforce  such  amendment  between 
congress  and  the  states  along  lines  which  separate  or 
distinguish  foreign  and  interstate  commerce  from  intra- 
state, but  confides  to  congress  power  territorially 
coextensive  with  the  prohibition  of  the  first  section  of 
the  eighteenth  amendment  and  embracing  manufacture 
and  other  intrastate  transactions  as  well  as  importation, 
exportation  and  interstate  traffic.  The  power  of 
congress  as  conferred  by  constitutional  amendment 
eighteen,  section  two,  is  not  dependent  on  the  action 
of  any  state  or  states. 

State  of  Rhode  Island  v.  Palmer,  253  U.  S.,  350   (40 
S.  Ct,  486). 

116.  One  Act  Violation  of  Two  Statutes : — 

There  is  no  constitutional  objection  in  making  one  act  or 
one  transaction  a  violation  of  two  statutes,  although 
both  eminate  from  the  same  sovereignty,  if  each  offense 
embraces  an  element  not  embraced  in  the  other. 

United  States  v.  Turner,  266  Fed.,  248; 

Carter  v.  McClaughry,  183  U.  S.,  365; 

Gavieres  v.  United  States,  220  U.  S.,  338; 

Ebeling  v.  Morgan,  237  U.  S.,  625. 

117.  Police  Powers: — 

The  fact  that  an  amendment  to  the  constitution  takes 
away  police  powers  previously  resting  in  a  state  does 
not  make  the  amendment  invalid. 

Christian  Feigenspan  Inc.  v.  Bodine,  264  Fed.,  189; 
United  States  v.  Cohen,  268  Fed.,  421. 

The  constitution  did  not  confer  police  power  upon  con- 
gress, but  it  is  none  the  less  true  that  when  the  United 
States  exerts  any  of  the  powers  conferred  upon  it  by 
the  constitution  no  valid  objection  can  be  passed  upon 
the  fact  that  such  exercise  may  be  attended  by  the  same 
incidents  which  attend  the  exercise  by  a  state   of  its 


CONSTITUTIONAL  29 

police  power  or  that  it  may  tend  to  accomplish  a  similar 
purpose. 

Hamilton  v.  Kentucky  Distilleries  and  Warehouse  Co., 
251  U.  S.,  146  (40  S.  Ct.,  106); 

Lottery  Case,  188  U.  S.,  321; 

McCray  v.  United  States,  195  U.  S.,  27  (24  S.  Ct,  769). 

The  same  rule  applies  as  to  the  war  powers  of  the  United 
States  as  applj^  to  police  powers,  other  powers,  etc.,  all 
are  subject  to  constitutional  limitation. 

Hamilton  v.  Kentucky  Distilleries  and  Warehouse  Co., 
251  U.  S.,  146  (40  S.  Ct.,  106). 

118.  Power  of  Congress: — 

It  is  within  the  power  of  congress  to  prohibit  the  disposi- 
tion of  liquor  manufactured  for  beverage  purposes 
before  the  eighteenth  amendment  became  effective. 

State  of  Rhode  Island  v.  Palmer,  253  U.  S.,  350  (40 
S.  Ct,  486). 

The  National  Prohibition  Act  is  within  the  power  of 
congress. 

State  of  Rhode  Island  v.  Palmer,  253  U.  S.,  350  (40 
S.  Ct,  486). 

119.  Power  of  Court: — 

It  is  not  the  duty  of  the  court  to  substitute  its  judgment 
for  that  of  the  legislative  department. 

Hannah  &  Hog  v.  Clyne,  263  Fed.,  599. 

120.  Power  to  Amend  in  Congress : — 

The  power  to  propose  amendments  to  the  constitution  is 
in  congress  alone  and  the  form  in  which  congress  makes 
such  proposal  is  not  subject  to  judicial  review. 

Christian  Feigenspan  Inc.  v.  Bodine,  264  Fed.,  189. 

121.  Property: — 

The  National  Prohibition  Act  of  October  28th,  1918,  is 
not  invalid  because  it  provides  for  taking  private  prop- 
erty for  public  use  without  compensation. 

Christian  Feigenspan  Inc.  v.  Bodine,  264  Fed.,  189. 

National  Prohibition  Act  is  constitutional  though  it 
amounts  to  confiscation  of  property  under  the  fifth 
amendment. 

Cornell  v.  Moore,  267  Fed.,  456. 


30  CONSTITUTIONAL 

122.  Reed  Amendment: — 

Reed  amendment  held  constitutional. 

Ozello  V.  United  States,  268  Fed.,  242; 
United  States  v.  Hill,  248  U.  S.,  420; 
United  States  v.  Simpson,  252  U.  S.,  465. 

123.  Right  of  Trial  by  Jury:— 

The  National  Prohibition  Act  is  not  unconstitutional  be- 
cause it  denies  the  right  of  trial  by  jury  where  there  is  a 
violation  of  the  injunction. 

Lewinsohn  v.  United  States,  278  Fed.,  421. 

124.  Section  One: — 

Section  one  of  the  eighteenth  amendment  is  not  a  delega- 
tion of  powers  to  be  exercised,  but  a  mandate  operated 
by  its  own  terms. 

Christian  Feigenspan  Inc.  v.  Bodine,  264  Fed.,  189; 

United  States  v.  Murphy,  264  Fed.,  842. 

125.  State  Powers: — 

States  have  exclusive  power  within  their  border  over  sale 
of  intoxicating  liquor  under  constitutional  amendment 
number  ten  before  the  eighteenth  amendment  became 

effective. 

Hannah  &  Hog  v.  Clyne,  263  Fed.,  599. 

126.  The  Power  of  the  United  States  to  Restrict : — 

If  the  nature  and  condition  of  restriction  upon  the  use  or 
disposition  of  property  is  such  that  a  state  could  under 
the  police  powder  impose  it  consistently  with  the  four- 
teenth amendment  without  making  compensation  then 
the  United  States  may  for  a  permitted  purpose  impose 
a  like  restriction  consistently  with  the  fifth  amendment 
without  making  compensation;  for  prohibition  of  the 
liquor  traffic  is  conceded  to  be  an  appropriate  means  of 
increasing  war  efficiency. 

Hamilton  v.  Kentucky  Distilleries  and  Warehouse  Co., 
251  U.  S.,  146  (40  S.  Ct.,  106). 

127.  The  Rule  as  to  Construction: — 

Every  constitutional  or  statutory  division   must  be  con- 
strued with  the  purpose  of  giving  effect  if  possible  to 
every  other  constitutional  or  statutory  provision. 
Elrod  V.  Moss,  278  Fed.,  123; 
Downes  v.  Bidwell,  182  U.  S.,  244; 
South  Carolina  v.  United  States,  199  U.  S.,  437. 


CONSTIUTIONAL  31 

Nothing  is  better  settled  than  that  in  the  construction  of  a 
law  its  meaning  must  first  be  sought  in  the  language 
employed.  If  that  be  plain  it  is  a  duty  of  the  courts  to 
enforce  the  la%y  as  written,  provided  it  be  within  the 
constitutional  authority  of  the  legislative  body  which 
passed  it. 

United  States  v.  Standard  Brewing  Co.,  251  U.  S.,  210 

(40  S.  Ct.,  139); 
Lake  Co.  v.  Rollins,  130  U.  S.,  662  (9  S.  Ct,  651) ; 
Bate  Refrigerator  Co.  v.  Sulzberger,  157  U.  S.,  1,  33 
(15  S.  Ct.,  508). 

As  a  matter  of  ordinary  construction  where  several  words 
are  followed  by  a  general  expression  which  is  as  much 
applicable  to  the  first  and  other  words  as  to  the  last 
that  expression  is  not  limited  to  the  last  which  applies 
to  all,  consequently  we  think  it  clear  that  the  framers 
of  the  statutes  intentionally  used  the  phrase  "other 
intoxicating"  as  relating  to  and  defining  the  immedi- 
ately preceding  designation  of  wine  and  beer. 

United  States  v.  Standard  Brewing  Co.,  251  U.  S.,  210 
(40  S.  Ct,  139). 

128.  Title  :— 

The  fedei-al  constitution  does  not  require  that  the  object 
or  purposes  of  a  congressional  act  be  indicated  by 
the  title. 

Wagman  v.  United  States,  269  Fed.,  568; 

Goodlett  V.  Louisville  R.  R.,  122  U.  S.,  391-408-409. 

129.  To  Determine  if  Search  Is  Reasonable: — 

To  determine  whether  or  not  a  search  is  reasonable  is 
purely  a  judicial  question. 

United  States  v.  Batmena,  278  Fed.,  231. 

130.  Transportation: — 

The  forbidding  of  transportation  of  liquor  for  beverage 
purposes  is  valid  under  constitutional  amendment 
eighteen. 

Cornell  v.  Moore,  267  Fed.,  456. 

131.  War  Time  Act  of  1918  :— 

War  Time  Act  of  November  2Lst,  1918,  does  not  contravene 
article  ten  of  the  amendment  to  the  constitution. 
United  States  v.  Minery,  259  Fed.,  707. 


32  CONSTITUTIONAL— DEFINITIONS 

War  Time  Act  not  repealed  because  of  eighteenth  amend- 
ment to  the  constitution.  Act  itself  provided  own  limi- 
tations which  are  until  demobilization  as  proclaimed  by 
the  President. 

United  States  v.  Minery,  259  Fed.,  707; 

Simon  et  al.  v.  Moore,  261  Fed.,  638; 

Hannah  &  Hog  v.  Clyne,  263  Fed.,  599. 

War  Time  Act  held  constitutional. 

United  States  v.  Ranier  Brewing  Co.  et  al.,  259  Fed., 

359; 
Jacob  Hoffman  Brewing  Co.  v.   M'Elligott,  259  Fed., 

321. 
Prohibiting    the    manufacture    and    sale    of    intoxicating 
liquor  during  war  time  is  within  the  power  of  congress. 
United  States  v.  Baumgartner,  259  Fed.,  722; 
Scatena  et  al.  v.  Caffey,  260  Fed.,  766. 

DEFINITIONS. 

132.  Beer  and  Wine  :— 

Use  of  words  beer,  wine  or  other  intoxicating  liquor  under 
act  of  November  21st,  1918,  refers  to  beer  and  wine 
which  are  intoxicating  in  fact. 

United  States  v.  Baumgartner,  259  Fed.,  722; 

United  States  v.  Ranier  Brewing  Co.  et  al.,  259  Fed., 

359; 
Jacob  Hoffman  Brewing  Co.  v.   M'Elligott,  259  Fed., 

321; 
United  States  v.  Petts  et  al.,  260  Fed.,  663. 

133.  Distance: — 

Distance  in  reference  to  a  prosecution  for  selling  liquor 
within  a  five  mile  zone  around  a  military  camp  means  a 
straight  line  along  a  horizontal  plane. 

Evans  v.  United  States,  261  Fed.,  902. 

134.  Doubtful  Words:— 

Doctrine  of  ''Noscitur  a  Sociis"  applies  to  doubtful  words 
or  terms.  Correct  meaning  must  be  determined  by 
associate  words  or  terms  which  are  clear. 

United  States  v.  Baumgartner,  259  Fed.,  722. 

135.  Hard  Cider:— 

"Hard  Cider"  is  cider  possessing  a  stimulating  and  in- 
toxicating effect  due  to  its  acquisition  of  a  substantial 


DEFINITIONS— DEPARTMENT  HEADS  33 

and  poteii  alcoholic  contents  through  the  processes  of 
fermentation. 

United  States  v.  Dodson,  268  Fed..  397.   . 

136.  Intoxicating  Liquor: — 

Intoxicating  liquor  is  any  liquor  intended  for  use  as  a 
beverage  or  capable  of  being  so  used  which  contains 
such  proportion  of  alcohol  that  it  will  produce  intoxi- 
cation when  imbibed  in  such  quantities  as  is  practically 
possible  for  man  to  drink. 

United  States  v.  Baumgartner,  259  Fed.,  722. 

137.  Liquor  :— 

"Liquor"  referred  to  in  the  National  Prohibition  Act 
means  "intoxicating  liquor." 

United  States  v.  Auto  City  Brewing  Co.,  279  Fed.,  132, 

138.  Property:— 

The  use  of  the  words  "property,"  "design,"  for  the 
manufacture  of  liquor  in  the  National  Prohibition  Act, 
Title  II,  paragraph  twenty-five,  includes  a  still  and  a 
stilling  apparatus,  whether  it  is  set  up  or  not,  as  well 
as  mash,  wort,  and  wash. 

United  States  v.  Phac,  268  Fed.,  392. 

139.  Sweet  Cider:— 

"Sweet  cider"  is  a  cider  before  fermentation  or  cider  in 
which  fermentation  has  been  prevented  and  has  not 
acquired  an  alcoholic  content. 

United  States  v.  Dodson,  268  Fed.,  397. 

"Sweet  cider"  is  a  non-alcoholic  beverage  and  within  the 
dictionary  definition  of  "soft  drink"  as  defined  in  the 
century  dictionary.  "Hard  cider"  is  fermented  cider. 
"Sweet  cider"  is  a  cider  before  fermentation. 

Monroe  Cider  Vinegar  and  Fruit  Co.  v.  Riodan,  280 
Fed.,  624. 

DEPARTMENT   HEADS. 

140.  Authority  to  Promulgate  Regulations: — 

The  law  is  establislied  that  the  President  may  exercise 
through  the  heads  of  departments  the  power  vested  in 


34         DEPARTMENT  HEADS— ENTRAPTMENT 

him.     This  applies  to  promulgation  of  regulations  by 
commissioner  of  internal  revenue,  etc. 

Maresca  et  al.  v.  United  States,  277  Fed.,  727; 

United  States  v.  Fletcher,  148  U.  S.,  84; 

Porter  v.  Cable,  246  Fed.,  244. 

ENTRAPMENT. 

141.  Held  Insufficient  Defense: — 

Entrapment  held  insufficient  as  a  defense. 

Andrews  v.  United  States,  162  U.  S.,  420; 
Price  V.  United  States,  165  U.  S.,  311. 

142.  Prosecution  May  Show  Acts  of  Violation  Before  Entrap- 
ment : — 

When  the  defense  is  one  of  entrapment  it  is  competent  to 

show  that  similar  unlawful  transactions  took  place  prior 

to  alleged  entrapment  for  the  purpose  of  rebutting  this 

defense. 

Billingsley  v.  United  States,  274  Fed.,  86. 

This  is  true,  although  the  evidence  of  prior  transactions 
would  create  suspicion  of  unlawful  action  only. 
Billingsley  v.  United  States,  274  Fed.,  86. 

Where  defendant  claimed  he  was  entraped  into  a  viola- 
tion of  the  law  and  that  he  was  operating  a  grocery 
store  and  not  a  saloon,  it  may  be  shown  he  made  state- 
ments that  the  grocery  store  was  ostensible  only. 
Billingsley  v.  United  States,  274  Fed.,  86. 

143.  Public  Policy  Estops  Entrapment: — 

Public  policy  forbids  that  officers  sworn  to  enforce  laws 
should  seek  to  have  the  laws  violated  and  that  those 
whose  duty  it  is  to  detect  criminals  should  create  them ; 
so  that,  when  an  officer  induces  a  person  who  has  had 
no  intention  of  committing  a  crime,  to  violate  the  law, 
courts  will  not  lend  their  aid  in  punishing  a  person 

thus  lured  into  crime. 

Billingsley  v.  United  States,  270  Fed.,  89; 

United  States  v.  Whight,  38  Fed.,  109; 

Woo  Wai  V.  United  States,  223  Fed.,  412; 

Grimm  v.  United  States,  156  U.  S.,  604; 

Goode  V.  United  States,  159  U.  S.,  663-669; 

Goldman  v.  United  States,  220  Fed.,  57-62; 

See,    also,   Martin   v.    United    States,    278   Fed.,    913; 
273  Fed.,  35;  249  Fed.,  191. 
Note. — For  additional  cases  on  entrapment,  see  Brief   18, 
A.  L.  R.,  143;  also  8  R.  C.  L.,  128. 


ENTRAPTMENT— EVIDENCE  ADMISSIBLE  35 

144.  Selling  to  Agent  Held  Not  Entrapment  :— 

The  officers  asked  defendant  to  serve  them  with  cough 
syrup.  They  were  served  with  whiskey.  This  is  not 
entrapment. 

Farley  v.  United  States,  269  Fed.,  721; 

Fiunkin  v.  United  States,  265  Fed.,  1. 

145.  When  Entrapment  Is  Permissible: — 

Entrapment  is  permissible  as  well  as  the  use  of  a  decoy 
in  disclosing  a  criminal  act,  but  the  entrapment  must 
not  be  of  such  nature  as  to  create  a  crime. 
United  States  v.  Healy,  202  Fed.,  349. 

EVIDENCE   ADMISSIBLE. 

146.  Admission : — 

Evidence  is  admissible  to  show  that  defendant  admitted 
owning  liquor. 

Wiggins  V.  United  States,  272  Fed.,  41. 

147.  Evidence  Admissible  Although  at  Variance : — 

Evidence  which  varied  from  proof  of  overt  act  held  com- 
petent in  a  charge  of  conspiracy. 

Alderman  et  al.  v.  United  States,  279  Fed.,  259. 

148.  Evidence    of    Sale    Admitted,    Though    Not    Made    by 
Defendant : — 

Objection  to  evidence  tending  to  prove  that  sale  of  intoxi- 
cating liquor  was  made  to  one  acting  as  bartender  and 
not  the  defendant  is  without  merit,  where  it  appears 
in  the  evidence  that  the  defendant  had  knowledge  that 
sale    had  been  made  by  his  bartender. 

Waffee  v.  United  States,  276  Fed.,  497. 

149.  Increase  of  Alcoholic  Content : — 

An  information  charged  defendant  with  selling  cider  con- 
taining more  than  one-half  of  one  per  cent  of  alcohol 
by  volume  held  not  sustained  by  evidence  of  sale  of 
cider  containing  less  than  such  per  cent,  even  though 
it  later  increased  its  alcoholic  content. 

United  States  v.  Dodson.  268  Fed.,  397. 

150.  Liquor  Found  on  Person: — 

Liquor  found  on  person  may  be  used  as  evidence  even  if 
seized  without  soai'ch  warrant. 

United  States  v.  Snyder,  278  Fed.,  650. 


36  EVIDENCE  ADMISSIBLE 

151.  Original  Pleadings,  Etc.,  Admitted: — 

Original  pleadings,  affidavits,  etc.,  are  properly  admitted 
in  evidence  on  a  hearing  of  contempt  for  a  violation  of 
an  injunction  for  the  purpose  of  showing  that  action 
was  pending  and  that  defendant  had  been  served. 
Allen  V.  United  States,  278  Fed.,  429. 

152.  Package  Resembling  in  Appearance  Those  Containing 
Whiskey  Held  Admissible: — 

Where  it  was  shown  by  the  evidence  that  two  packages  of 
whiskey  were  received  through  the  mails  testimony  that 
other  packages  of  a  similar  description  were  received  at 
a  prior  time  was  held  admissible. 

Ciafirdini  v.  United  States,  266  Fed.,  472. 

153.  Telegram  Not  Received,  Held  Admissible: — 

Indictment  charged  as  a  part  of  a  conspiracy  the  sending 
of  a  telegram.    It  was  shown  the  telegram  was  sent,  but 
it  was  not  shown  it  was  received.     Telegram,  however, 
was  held  to  be  admissible  under  the  circumstances. 
Alderman  et  al.  v.  United  States,  279  Fed.,  259. 

154.  Whiskey  Found  in  Shop  of  Defendant's  Brother  Held 
Admissible : — 

The  evidence  showed  that  a  brother  of  the  defendant  and 
one  of  his  employees  had  a  rented  post  office  box  and 
that  two  packages  of  whiskey  were  sent  through  the 
mails  in  the  care  of  these  boxes,  although  bearing  ficti- 
tious addresses.  It  was  also  shown  that  the  brother  of 
the  defendant  and  his  employee  sent  telegrams  to 
defendant  in  Cincinnati,  from  which  point  the  packages 
were  mailed.  It  was  held  competent  to  show  by  govern- 
ment agent  that  he  found  a  large  quantity  of  whiskey 
in  the  brother's  shop. 

Ciafirdini  v.  United  States,  266  Fed.,  471. 

155.  Whiskey  Tags  Admitted,  Though  Not  Identified: — 

Certain  tags  were  used  in  making  purchases  of  liquor  in 
violation  of  prohibition  act.  It  was  held  that  tags  were 
properly  admitted  in  evidence,  although  not  identified 
or  secured  by  reason  of  a  search  warrant. 

Cabiale  et  al.  v.  United  States,  276  Fed.,  769; 

Adams  v.  New  York,  192  U.  S.,  585; 

Weeks  v.  United  States,  232  U.  S.,  383. 


EXCEPTIONS  AND  OBJECTIONS— FORFEITURE  37 

EXCEPTIONS  AND  OBJECTIONS. 

156.  Should  be  Specific  :— 

A  general  exception  to  the  general  charge  of  the  court 
is  insufficient. 

Wagman  v.  United  States,  269  Fed.,  568; 

Anthony  v.  Louisville  R.  R.  Co.,  132  U.  S.,  172. 
Objections  and  exceptions  must  be  specific  and  sufficiently 
definite  to  inform  the  court  of  precise  ruling  complained 
of. 

Waffee  v.  United  States,  276  Fed.,  497; 

United  States  v.  Fidelity  Co.,  236  U.  S.,  512; 

Gardner  v.  United  States,  230  Fed.,  575. 

A  general  exception  will  not  be  considered  by  the  court 
except  where  there  is  manifest  error  in  the  charge,  upon 
a  question  vital  to  the  defendant. 

Tucker  v.  United  States,  224  Fed.,  833-840. 

157.  Taken  at  Once : — 

Objections  to  error  of  the  court  in  misstating  the  evidence 
must  be  taken  at  once. 

United  States  v.  Schwartz,  276  Fed.,  397; 
Hickory  v.  United  States,  160  U.  S.,  408; 
Riddle  v.  United  States,  244  Fed.,  695. 

Exceptions  should  be  taken  while  the  jury  is  at  the  bar, 
otherwise  reviewing  court  will  not  consider  them. 
Clyatt  V.  United  States,  197  U.  S.,  207; 
Williams  v.  United  States,  158  Fed.,  30. 

FORFEITURE. 

158.  Bond  not  Cancelled  Until  Trial : — 

Bond  given  for  return  of  seized  property  cannot  be  can- 
celled until  the  expiration  of  time  without  which  trial 
can  be  had. 

United  States  v.  One  Cadillac  Touring  Car,  274  Fed., 
470. 

159.  Conviction  in  State  not  Enough  to  Warrant  Forfeiture : — 

Conviction  in  a  state  court  is  not  enough  lo  warrant  for- 
feiture of  property  under  National  Pi-ohibition  Act,  Sec- 
tion 26. 

United  States  v.  One  Buick  Roadster,  276  Fed.,  407; 
United  States  v.  One  Cadillac  Touring  Car,  274  Fed., 
470. 


38  FORFEITURE 

160.  Forfeiture  not  Sustained: — 

A  forfeiture  of  au  automobile  for  transportation  of  liquor 
in  violation  of  Section  26  of  the  National  Prohibition 
Act  will  not  be  sustained  where  the  record  fails  to  show 
that  the  persons  in  charge  of  the  said  vehicle  were  vio- 
lating the  act  or  that  they  had  been  prosecuted  and  con- 
victed as  required  by  Section  26. 

Reo  Atlanta  Co.  v.  Stearns,  279  Fed.,  422. 

161.  Kept  Under  the  Act  Meaning  "Kept  for  Sale" : — 

An  automobile  is  not  subject  to  a  forfeiture  under  Section 
21  of  the  National  Prohibition  Act  unless  it  can  be  shown 
that  intoxicating  liquors  were  sold,  kept,  manufactured 
or  bartered  in  said  automobile.  The  word  ' '  kept ' '  mean- 
ing kept  for  sale  or  other  commercial  purposes. 

United  States  v.  One  Cadillac  Touring  Car,  274  Fed., 

470; 
Street  v.  Lincoln  Safe  Deposit  Co.,  254  U.  S.,  88. 

162.  Lienors  Protected: — 

Lienors  are  protected  on  forfeitures. 

United  States  v.  One  Paige  Automobile,  277  Fed.,  524. 

163.  No  Forfeiture  Until  After  Conviction : — 

An  automobile  cannot  be  forfeited  and  sold  under  Section 
26  of  the  National  Prohibition  Act  until  such  persons 
arrested  for  its  unlawful  use  have  been  convicted. 

United  States  v.  One  Cadillac  Touring  Car,  274  Fed., 

470; 
United  States  v.  Slusser,  270  Fed.,  818; 
United  States  v.  Stevens  Automobile,  272  Fed.,  188. 

164.  No    Need    to    Hold    Great    Amount    of    Whiskey    for 
Evidence : — 

There  is  no  justifiction  for  holding  a  great  amount  of 
whiskey  taken  as  evidence  when  a  small  amount  fur- 
nished sufficient  evidence  to  convict. 

Hughes  V.  Falvey,  269  Fed.,  865; 

Dorsey  v.  District  of  Columbia,  265  Fed.,  1005. 

165.  Not  Under  Custom  Laws : — 

Proceedings  to  work  forfeiture  of  vehicle  should  be 
brought  under  Section  26  of  the  National  Prohibition 
Act  and  not  under  the  custom  laws. 

United  States  v.  One  Paige  Automobile,  277  Fed.,  524. 


HABEAS  CORPUS  39 

HABEAS  CORPUS. 

166.  Competent  Evidence  Necessaiy  to  Hold: — 

Accused  will  be  discharged  by  court  on  habeas  corpus  if 
there  is  no  competent  evidence  against  him  constituting 
probable  cause. 

United  States  v.  Kallos,  272  Fed.,  742. 

167.  Due  Process  of  Law: — 
Definition  of  due  process  of  law,  see : 

Frank  v.  Mangum,  237  U.  S.,  309; 
Brown  v.  New  Jersey,  175  U.  S.,  172. 

168.  No  Appellate  Powers  in  District  Court: — 

District  court  cannot  exercise  appellate  power  over  an- 
other district  court. 

Rogers  v.  Desportes,  268  Fed.,  86. 

169.  Petition  Must  be  Specific: — 

It  is  incumbent  on  petitioner  to  show  that  he  is  being  un- 
lawfully detained,  therefore  petition  must  set  forth  facts 
sufficient  to  fully  advise  the  court. 
Hines  v.  Mikele,  259  Fed.,  28. 

170.  Power  of  Circuit  Court  to  Issue: — 

A  circuit  judge  has  authority  to   grant  writ  of  habeas 

corpus. 

Ex  Parte  Craig.  274  Fed.,  177; 
In  Re:  David  Lamar,  274  Fed.,  160. 

171.  Release  of  Persons  from  State  Authorities: — 

Defendants  were  in  custody  of  a  federal  officer  charged 

with  a  violation  of  the  Volstead  Act.     While  in  such 

custody  they  were  arrested  and  taken  from  the  custody 

of  the  federal  officers  by  state  authorities.    Held  habeas 

corpus  would  lie  to  secure  discharge  from  custody  of 

state  officers. 

Ex  Parte  Ramsey  et.  al.,  265  Fed.,  950. 

The  federal  court  has  jui'isdiction  and  may  make  inquiry 
into  the  detention  of  prisoners  by  state  authorities. 
Ex  Parte  Ramsey  et.  al.,  265  Fed.,  950. 

172.  Release  of  Prisoner  in  State  Custody: — 

Only  in  exceptional  cases  sliouhl  a  federal  judge  exercise 
the  power  conferred  upon  him  to  issue  a  writ  of  habeas 


40  HABEAS  CORPUS 

corpus  to  release  one  who  is  in  custody  of  state  au- 
thorities. 

Ronale,  117  U.  S.,  241; 

Shapley  v.  Cahoon,  258  Fed.,  757. 

173.  Review  of  Commissioner's  Finding: — 

Upon  habeas  corpus,  the  court  may  review  the  evidence 
to  ascertain  what  it  really  shows,  and,  if  it  finds  that 
all  of  the  evidence  taken  together  does  not  support  the 
commissioner's  finding  of  probable  cause,  his  ruling 
may  be  disregarded  and  the  defendant  discharged. 

United  States  v.  Kallas,  272  Fed.,  742; 

Pereless  v.  Weil,  157  Fed.,  see  page  421. 

174.  Violation  of  Constitutional  Rights  Necessary  to  Release 
Prisoner  Held  by  State  Authorities: — 

In  order  to  entitled  petitioner  to  release  from  state  au- 
thorities, it  must  be  shown  that  he  is  held  in  violation 
of  some  constitutional  right. 

United  States  v.  Briggs,  266  Fed.,  434. 

If  there  has  been  an  invasion  or  denial  of  a  constitutional 

right  the  prisoner  may  be  discharged  by  writ  of  habeas 

corpus. 

Ex  Parte  Craig,  274  Fed.,  180. 

175.  Voluntary  Surrender  Does  Not  Effect  Right:— 

The  fact  that  a  federal  officer  voluntarily  surrenders  him- 
self to  state  officials  does  not  deprive  him  of  the  right 
to  determine  the  legality  of  his  arrest  by  habeas  corpus. 
Ex  Parte  Beach,  259  Fed.,  956. 

176.  When  Court  Has  no  Authority  to  Grant  :— 

Accused  was  arrested  for  violation  of  the  Volstead  Act 

upon  verbal  direction  of  district  attorney.    It  was  held 

that  in  view  of  the  fact  that  arrest  could  not  be  made 

on  mere  verbal  directions  of  the  district  attorney  that 

there  was  no  jurisdiction  in  federal  court  to   release 

prisoner  on  writ  of  habeas  corpus,  such  authority  being 

in  the  state  court. 

Ex  Parte  Swift,  276  Fed.,  57. 

177.  Will  not  Inquire  as  to  Extradition: — 

When  offender  is  extradicted  from  one  state  to  another 
the  federal  court  will  not  inquire  into  any  irregularity 
in  connection  with  the  extradition. 
Ex  Parte  Shears,  265  Fed.,  959. 


HABEAS  CORPUS— IMPEACHMENT  41 

178.  Who  May  Apply  :— 

The  practice  of  a  "next  friend"  applying  for  a  writ  of 
habeas  corpus  is  ancient  and  fully  accepted.  But  the 
complaint  must  set  forth  some  reason  or  explanation 
satisfactory  to  the  court  showing  why  the  detained  per- 
son does  not  sign  and  verify  the  complaint  and  who  the 

next  friend  is. 

United  States  v.  Houston,  273  Fed.,  915. 

179.  Writ  Will  Not  Serve  as  Writ  of  Error  :— 

A  writ  of  habeas  corpus  cannot  be  made  to  perform  the 
office  of  a  writ  of  error,  nor  can  it  be  invoked  to  review 
an  erroneous  judgment  of  a  court  of  competent  jurisdic- 
tion.   It  challenges  the  jurisdiction  of  the  court. 

Ex  Parte  Craig,  274  Fed.,  180; 

In  Re:  Debs,  158  U.  S.,  564; 

Ex  Parte  Yarbrought,  110  U.  S.,  651; 

Ex  Parte  Watkins,  28  U.  S.,  193; 

Oremely  v.  United  States,  273  Fed.,  977. 

IMPEACHMENT. 

180.  Animosity: — 

Animosity  may  be  shown  if  sufficient  to  influence  witness. 
United  States  v.  Post,  135  Fed.,  1. 

181.  Collateral  Attack  Improper: — 

It  is  not  proper  to  attack  credibility  of  witness  by  raising 

as  an  issue  his  honesty  on  an  entirely  different  subject 

than  the  one  at  bar. 

Daniels  v.  United  States,  196  Fed.,  459. 

182.  Good  Character: — 

The  court  did  not  err  in  refusing  to  permit  witness  to 
testify  to  good  character  of  other  witnesses  when  the 
character  of  the  latter  had  not  been  assailed. 
Woey  Ho  v.  United  States.  109  Fed.,  888. 

183.  Impeachment : — 

Facts  constituting  impeachment. 

The  Strathdon,  101  Fed.,  600. 

When   maxim   "Falsus    in    uno    falsus    in   omnibus"    will 

apply. 

The  Helen  v.  Martin,  180  Fed.,  317. 


42  IMPEACHMENT 

184.  Inconsistent  Statements: — 

Inconsistent  statements  made  out  of  court. 

Chicago  Northwestern  Ry.  Co.  v.  DeClow,  124  Fed.,  142. 

185.  Interest: — 

Interest  may  be  sho"vvn. 

Wabash  Screen  Door  Co.  v.  Black,  126  Fed.,  721. 

186.  Not  Necessary  to  Contradict : — 

It  is  not  absolutely  necessary  that  a  witness  be  contra- 
dicted to  make  his  testimony  unsatisfactory.  Inaccura- 
cies, improbabilities,  loss  of  memory,  lack  of  intelligence, 
evasion  of  questions  may  all  indicate  the  weight  to  be 
given  to  a  witness'  testimony. 

United  States  v.  Lee  Helen,  118  Fed.,  442. 

187.  Own  Witnesses: — 
Cannot  impeach  own  witness. 

In  Re:   San  Miguel  Gold  Mining  Co.,  197  Fed.,  126. 

188.  Proper  to  Ask  Witness  About  Drinking:— 

Witness  may  be  asked  if  he  was  drinking  at  or  about  the 
time  which  he  has  been  testifying. 

Armour  &  Co.  v.  Skene,  153  Fed.,  241, 

189.  Questions  as  to  Previous  Conviction: — 

Held,  That  district  attorney  could  ask  accused  if  he  had 
not  been  previously  convicted  of  using  the  mails  to  de- 
fraud and  whether  or  not  he  was  using  a  different  name 
at  the  time  of  the  conviction. 

Ball  V.  United  States,  147  Fed.,  32. 

190.  Sustaining  Witnesses: — 

Witnesses  may  be  used  to  sustain  witness  threatened  with 
impeachment. 

Dimmick  v.  United  States,  135  Fed.,  257. 

191.  Witness  May  Testify  That  He  was  Innocent:— 

Defendant  on  cross  examination  in  answer  to  questions 
evidently  intended  to  discredit  his  testimony  admitted 
that  he  was  an  inmate  of  a  prison  upon  conviction  for 
larceny.  On  re-direct  he  was  permitted  to  testify  that  he 
was  innocent  of  the  charge,  held  not  error. 
Wagman  v.  United  States,  269  Fed.,  568. 


INDICTMENT   AND    INFORMATION  43 

INDICTMENT  AND  INFORMATION. 

192.  Affidavit  Before  Notary  Public:— 

Information  was  supported  by  affidavit  sworn  to  before  a 
notary  public.  Held  that  this  did  not  invalidate  the  in- 
formation when  no  objection  Avas  made  before  verdict. 

Waffee  v.  United  States,  276  Fed.,  497; 

Simpson  v.  United  States,  241  Fed.,  841. 

193.  Articles  of  War  :— 

Where  the  defendant  was  charged  with  transporting  liquor 
within  a  military  zone  indictment  was  held  not  defective 
because  it  failed  to  aver  that  defendant  was  not  punish- 
able under  Articles  of  War. 

Robertson  v.  United  States,  262  Fed.,  948. 

194.  Averment  as  to  Statute  not  Necessary : — 

It  is  not  essential  that  statute  relied  upon  be  alleged  in  the 
indictment. 

Maresca  et.  al.  v.  United  States,  277  Fed.,  727. 

195.  Charging  Nuisance : — 

Where  counts  of  an  information  charged  that  possession 
is  prohibited  and  unlawful  and  follows  the  statute  it  is 
a  sufficient  charge  of  the  maintenance  of  a  nuisance. 

Feigen  v.  United  States,  279  Fed.,  107; 

Young  V.  United  States,  272  Fed.,  967. 

196.  Commencement  of  Transportation: — 

An  indictment  under  Reed  amendment  is  not  necessarily 
defective  because  it  fails  to  state  the  point  from  which 
said  transportation  started. 

Ciafirdini  v.   United   States,  266  Fed.,  471. 

197.  Date  in  Indictment: — 

The  date  in  an  indictment  does  not  necessarily  limit  tlie 
prosecution  to  proof  of  commission  of  the  offense  upon 
that  identical  date,  provided  the  date  proven  is  prior 
to  the  date  of  filing  the  indictment  and  is  in  such  reason- 
able proximity  to  the  actual  date  that  llie  defendant 
could  not  be  mislead  thereby. 

Billingsley  v.  United  States,  274  Fed.,  86; 

United  States  v.  Mallory,  31  Fed.,  19; 

DierkB  v.  United  States,  274  Fed.  75. 


44  INDICTMENT   AND    INFORMATION 

Nor  is  it  necessary  to  amend  an  indictment  as  to  date  so 
as  to  make  admissible  testimony  of  a  witness  to  the 
actual  date  of  offense. 

Billingsley  v.  United  States,  274  Fed.,  86. 

198.  Endorsement : — 

The  endorsement  is  no  part  of  the  indictment,  which  suffi- 
ciently sets  out  the  offense  by  stating  facts  which  bring 
it  within  the  applicable  law. 

Wagman  v.  United  States,  269  Fed.,  568. 

199.  Endorsement  of  Witnesses : — 

A  bill  of  particulars  was  refused  and  witnesses  Avere  al- 
lowed to  testify  for  the  government  whose  names  were 
not  endorsed  upon  the  indictment.  Held.  This  matter 
rested  in  the  discretion  of  the  trial  court  and  will  not  be 
disturbed  unless  discretion  is  abused. 

Mayer  v.  United  States,  259  Fed.,  216. 

200.  Essentials : — 

An  indictment  should  set  forth  accurately  every  ingredient 
of  which  the  offense  is  composed.  If  the  crime  is  made 
up  of  acts  and  intent  these  must  be  set  forth  with  rea- 
sonable particularity  as  to  time  and  place ;  the  defendant 
should  be  informed  as  to  the  precise  nature  of  the  charge 
made  against  him  and  also  that  it  may  enable  him  to  sus- 
tain a  plea  of  former  acquittal  or  conviction. 

United  States  v.  Dowling,  278  Fed.  633; 

Johnson  v.  United  States,  87  Fed.,  187; 

United  States  v.  Cruikshank,  92  U.  S.,  543; 

Blutz  vs.  United  States,  153  U.  S.,  308; 

Brown  v.  United  States,  143  Fed.,  60; 

Floren  v.  United  States,  186  Fed.,  961; 

Harper  v.  United  States,  170  Fed.,  385. 

201.  Exceptions  of  Act: — 

An  information  charging  possession  of  intoxicating  liquors 
declaring  it  unlawful  to  have  possession  of  said  liquors 
"except  as  hereinafter  provided"  need  not  allege  that 
the  possession  was  not  under  the  exceptions. 
Ex  Parte  Ramsey  et.  al.,  265  Fed.,  950. 

202.  Facts  Not  Constituting  a  Bar: — 

It  was  objected  that  both  counts  of  an  indictment  were 
supported  by  the  same  evidence  and  that  conviction  on 


INDICTMENT   AND    INFORMATION  45 

the  first  count  should  bar  conviction  on  the  second,  ob- 
jection was  held  to  be  of  no  avail  when  evidence  dis- 
closed a  violation  of  both  possession  and  maintaining 
a  common  nuisance  as  set  forth  in  separate  counts. 
Page  et.  al.  v.  United  States,  278  Fed.,  41. 

203.  Habeas  Corpus: — 

Habeas  Corpus  will  not  lie  to  raise  insufiiciency  of  indict- 
ment. 

268  Fed.,  461. 

204.  Intoxicating : — 

Defendant  was  charged  with  selling  malt  product.  "Com- 
monly known  as  lager  beer,"  containing  as  much  as 
one-half  of  one  per  cent  of  alcohol.  Information  did 
not  include  that  it  was  intoxicating.  Held.  Good  on 
demur. 

United  States  v.  Schamauder,  258  Fed.,  251. 

Must  contain  allegation  that  liquor  sold  was  of  an  intoxi- 
cating nature. 

United  States  v.  Baumgartner,  259  Fed.,  722. 

Indictment  charged  defendant  with  violation  of  act  of 
November  21st,  1918,  by  manufacturing  malt  liquor 
having  an  alcoholic  content  of  one-half  of  one  per  cent 
or  more.  It  did  not  allege  that  liquor  was  intoxicating. 
Held.    Bad  on  demur. 

United  States  v.  Standard  Brewery,  260  Fed.,  486. 

It  is  not  necessary  that  an  indictment  should  allege  that 
beer  under  the  War  Time  Act  is  intoxicating. 

United  States  v.  Pittsburgh  Brewing  Co.,  260  Fed.,  762. 

205.  Instituted  by  Commissioners: — 

District  court  has  authority  to  permit  an  information  to 
be  filed  though  the  proceeding  was  instituted  by  a  com- 
missioner. 

United  States  v.  Metzger,  270  Fed.,  291. 

206.  Knowingly  Sell:— 

The  defendant  was  charged  with  violating  the  National 
Prohibition  Act.  He  had  been  duly  licensed  under  Title 
Two,  Paragraph  Four,  to  operate  a  perfumery  still.  The 
information  failed   to   charge   that  he  did   "knowingly 


46  INDICTMENT    AND    INFORMATION 

sell"  intoxicating  liquor.  It  was  also  sliowTi  that  he  re- 
ceived no  notice  or  had  he  a  hearing  as  required  by  Title 
Two,  Paragraph  Four  and  Five  of  the  Act.  It  was  held 
that  no  violation  of  the  law  was  proven. 

United  States  v.  Mozzone,  268  Fed.,  652. 

207.  Leave  to  File  Information: — 

Leave  to  file  information  will  be  refused  when  the  govern- 
ment has  failed  to  show  probable  cause  and  the  only 
evidence  presented  was  illegally  obtained. 

United  States  v.  Quaritius,  267  Fed.,  227. 

208.  Matter  of  Proof : 

Information  was  held  sufficient  which  charged  the  sale  of 
"alcoholic  liquor"  and  labeled  "Newbro's  Herpicide." 
Question  of  whether  or  not  it  was  in  prohibition  was  a 
matter  of  proof. 

United  States  v.  Kinsel,  263  Fed.,  141. 

209.  Misapprehension  of  Statutes: — 

Where  an  indictment  properly  charges  an  offense  under 
the  laws  of  the  United  States  that  is  sufficient  to  sus- 
tain, although  United  States  attorney  may  have  sup- 
posed that  the  offense  charged  was  covered  by  a  differ- 
ent statute. 

United  States  v.  Puhac,  268  Fed.,  392; 

Williams  v.  United  States,  168  U.  S.,  382. 

210.  Must  Set  Forth  Facts  :— 

The  indictment  must  set  forth  facts  and  not  the  law. 
United  States  v.  Nixon,  235  U.  S.,  231. 

Even  if  in  words  of  statute  indictment  must  set  forth  the 

facts. 

Martin  v.  United  States,  168  Fed.,  198; 
United  States  v.  Hess,  124  U.  S.,  483. 

211.  No  Objection  After  Verdict: — 

Where  an  indictment  Avas  in  the  words  of  the  statute  and 
it  had  not  been  challenged  by  demur  or  otherwise  and 
the  defendant  having  failed  to  avail  himself  of  the 
right  to  require  a  bill  of  particulars  in  a  proper  case  it 
was  held  too  late  to  object  after  verdict. 
Ozello  V.  United  States,  268  Fed.,  242. 

212.  Not  Germain: — 

Matter  not  germain  is  considered  surplusage. 

Maresca  et.  al.  v.  United  States,  277  Fed.  727. 


INDICTMENT   AND    INFORMATION  47 

213.  Not  Necessary  to  Show  Defendant  as  the  Proprietor: — 

Under  information  ehargino:  maintenance  of  room,  etc., 
where  it  was  shown  defendant  had  on  several  occasions 

sold  whiskey,  it  was  held  that  it  was  unnecessary  to 
prove  that  he  the  defendant  was  the  proprietor  to  secure 
his  conviction  as  principal. 

Vesely  v.  United  States,  276  Fed.,  693. 

214.  Penalties : — 

In  a  case  where  the  National  Prohibition  Act  imposes  a 
more  severe  penalty  for  a  second  offense  than  does  a 
state  court  for  a  violation  of  the  state  statute  does  not 
authorize  the  refusal  of  leave  to  file  an  information 
charging  violation  of  the  federal  law.  However,  the 
court  will  take  cognizance  of  the  punishment  previously 
given  the  defendant  so  that  he  may  not  be  twice  punished 
for  the  same  act. 

United  States  v.  Holt,  270  Fed.,  639. 

215.  Possession: — 

An  indictment  containing  allegation  that  defendant  will- 
fully and  unlawfully  and  knowingly  did  keep  on  the 
premises  certain  described  intoxicating  liquors  is  suffi- 
cient to  comply  with  the  statute.  Under  the  provisions 
of  Section  32,  Title  II  of  the  Act,  it  was  unnecessary  to 

include  more. 

Herine  v.  United  States,  276  Fed.  806. 

On  an  indictment  for  possession  prosecution  is  not  required 
to  prove  that  the  defendant  did  not  have  a  permit. 
Laurie  v.  United  States,  278  Fed.,  934; 
Kiersky  v.  United  States,  263  Fed.,  684; 
Faranoe  v.  United  States,  259  Fed.,  507. 

The  continuous  possession  of  liquor  need  not  be  alleged. 
Feigen  v.  United  States,  279  Fed.,  107. 

Indictment  charged  unlawful  possession  of  liquor.     Held 

sufficient. 

United  States  v.  Everson,  280  Fed.,  126. 

216.  Presumption: — 

Indictment  alleged  that  defendants  .sold  a  glass  of  alcohol 
mixed  with  some  substance  to  the  grand  jury  miknown. 
There  was  no  evidence  tending  to  prove  that  the  grand 
jurors  knew  or  were  informed  what  the  substance  was 


48  INDICTMENT    AND    INFORMATION 

which  was  mixed  with  the  alcohol  charged  to  have  been 
sold.  The  presumption  was  that  such  substance  was 
unknown  to  the  grand  jury.  This  presumption  dispensed 
with  the  necessity  of  proving  the  averment  in  that  re- 
gard. 

For  et.  al.  v.  United  States,  269  Fed.,  609; 

United  States  v.  Riley,  74  Fed.,  210. 

217.  Properly  Consolidated: — 

An  information  charged  the  unlawful  sale  of  intoxicating 
liquor.  The  second  count  of  which  charged  the  main- 
taining of  a  room,  etc.,  from  which  liquors  were  sold. 
The  second  information  charged  unlawful  transporta- 
tion. Held  that  these  could  be  properly  consolidated 
for  trial  under  Section  1024  R.  S.  (Comp.  St.,  1690)  and 
Section  32  of  Title  II  of  the  National  Prohibition  Act. 
Vesely  v.  United  States,  276  Fed.,  693. 

218.  Prosecution  by  Information: — 

When  prosecution  may  be  by  information. 
United  States  v.  Actien,  267  Fed.,  595. 

219.  Right  to  File  Information: — 

The  district  attorney's  right  to  file  information  is  not 
effected  by  the  fact  that  defendant  is  at  time  of  filing 
said  information  under  arrest  and  bound  over  to  the 

grand  jury. 

Waffee  v.  United  States,  276  Fed.,  497. 

The  right  of  the  district  attorney  to  file  an  information 
is  not  an  absolute  or  unqualified  right.  Before  doing  so 
he  must  secure  leave  of  the  court. 

Waffee  v.  United  States,  276  Fed.,  499. 

The  granting  of  leave  to  file  information  by  the  court  is 
not  subject  to  review  unless  there  is  a  clear  abuse  of 
discretion  on  the  part  of  the  court. 

Waffee  v.  United  States,  276  Fed.,  497. 

220.  Sale  :— 

Indictment  charged  sale  of  intoxicating  liquor  for  bever- 
age purposes  held  sufficient. 

Heitler  v.  United  States,  280  Fed.,  703. 

Information  charged  that  defendant  "did  sell  certain  in- 
toxicating liquor  to-wit :  claret  wine  containing  one-half 
of  one  per  cent  or  more  of  alcohol  by  volume  and  then 


INDICTMENT   AND   INFORMATION  49 

and  there  fit  for  use  for  beverage  pui-poses,  etc."  Held, 
the  objection  that  information  did  not  state  wine  was 
sold  for  beverage  purposes  was  of  no  effect. 

Cabiale  et.  al.  v.  United  States,  276  Fed.,  769. 
If  information  alleges  that  sale  was  "then  and  there  pro- 
hibited and  unlawful  and  in  violation  of  Section  3,  of 
Title  II,  National  Prohibition  Act,  the  averment  neces- 
sarily excludes  the  idea  that  sale  was  for  legitimate 
purposes. 

Cabiale  et.  al.  v.  United  States,  276  Fed.,  769; 

Tyke  v.  United  States,  254  Fed.,  225; 

Rothman  et.  al.  v.  United  States,  270  Fed.,  31; 

Melason  v.  United  States,  256  Fed.,  783; 

Thurston  v.  United  States,  241  Fed.,  335; 

Wallace  v.  United  States,  243  Fed.,  300. 

221.  Selling  Liquor  is  a  Misdemeanor: — 

Selling  liquor  is  not  a  capital  or  infamous  crime  but  is 
merely  a  misdemeanor  which  may  be  prosecuted  under 
an  information. 

Waffee  v.  United  States,  276  Fed.,  497; 

Ex  Parte  Wilson,  114  U.  S.  417; 

United  States  v.  Lindsay-Wells  Co.,  186  Fed.,  248; 

United  States  v.  Quaritius,  267  Fed.,  227; 

United  States  v.  Achen,  267  Fe'd.,  595; 

United  States  v.  Baugh,  1  Fed.,  784. 

222.  Traffic  of  Selling  Liquor:— 

It  is  not  necessary  under  the  National  Prohibition  Act  to 
prove  allegations  that  the  defendant  was  engaged  in  the 
traffic  of  selling  liquor.  It  is  enough  to  show  that  he 
sold  liquor  in  any  quantity. 

Farley  v.  United  States,  269  Fed.,  721. 

223.  Transportation : — 

It  is  not  necessary  for  an  indictment  to  charge  or  the  evi- 
dence to  show  an  actual  transportation  under  the  act  of 
March  3rd,  1917. 

Tacon  v.  United  States,  270  Fed.,  88; 
Ex  Parte  Westbrook,  250  Fed.,  636. 

224.  Under  Law  Repealed : — 

The  fact  tliat  an  indictment  is  returned  under  an  act 
since  repealed  does  not  effect  the  validity  of  the  indict- 
ment if  it  has  application  1o  a  then  existing  law. 

Farley  v.  United  States,  269  Fed.,  721; 

Verdin  v.  United  States,  2.57  Fed.,  550-551; 

Williams  v.  United  States,  168  U.  S.,  382. 


50  INDICTMENT   AND    INFORMATION 

The  fact  that  a  certain  comit  of  an  indictment  was  held 
bad  because  based  on  a  repealed  statute  held  no  reason 
for  reversing  conviction  on  good  counts  remaining. 

Maresca  et.  al.  v.  United  States,  277  Fed.,  727. 

Selvester  v.  United  States,  170  U.  S.,  262. 

225.    Variance: — 

The  indictment  alleged  that  sale  was  made  to  John  F. 
Burke.  The  proof  was  that  sale  was  made  to  J.  L.  Burke. 
Held.    Not  a  variance. 

Saucedo  v.  United  States,  268  Fed.,  830. 

A  mistaken  reference  in  the  indictment  to  the  appropriate 
act  upon  which  the  indictment  is  based  is  not  fatal. 
Wagman  v.  United  States,  269  Fed.,  568; 
West  V.  United  States,  258  Fed.,  413-15-16; 
Grandi  v.  United  States,  262  Fed.,  123. 

Where  an  indictment  alleges  a  transportation  to  a  certain 
point  and  the  proof  shows  that  the  transportation  was 
made  two  or  three  miles  from  the  point  alleged  it  is  an 
immaterial  variance. 

Bishop  V.  United  States,  259  Fed.,  195. 

The  fact  that  indictment  refers  to  wrong  act  held  not 
fatal  when  charge  showed  offense  under  war  time  act. 
Maresca  et.  al.  v.  United  States,  277  Fed.,  727. 

Information  for  unlawfullj^  maintaining  a  room,  etc.,  for 
sale  of  intoxicating  liquor  held  sufficient. 
Vesely  v.  United  States,  276  Fed.,  693; 
Young  V.  United  States,  272  Fed.,  967. 

It  is  immaterial  that  averment  in  indictment  stated  one  city 

where  the  proof  showed  that  it  was  in  another,  but  in 

the  same  district. 

Heitler  v.  United  States,  280  Fed.,  703. 

Information  alleged  that  the  name  of  a  certain  vessel  was 
the  "Molly  0."  Testimony  showed  the  name  as  being 
"Molly."    Held  not  to  be  a  variance. 

Alderman  et.  al.  v.  United  States,  279  Fed.,  259. 

Where  an  Alabama  sheriif  testified  that  he  had  seized 
liquor  in  a  certain  town  in  Louisiana  and  where  it  is 
quite  evident  that  the  sheriff  had  manifestly  made  a 
mistake  and  where  the  standard  maps  showed  that  the 


INDICTMENT   AND    INFORMATION  51 

town  in  question  to  be  in  Alabama  and  not  in  Louisiana 
it  was  held  not  to  be  a  variance. 

Tacon  v.  United  States,  270  Fed.,  88. 

226.  Verdict  :— 

Indictment  cured  by  verdict. 
275  Fed.,  294. 

227.  Verification: — 

Information  need  not  be  verified  unless  warrant  is  issued. 
275  Fed.,  394. 

228.  What  Is  Intoxicating. 

An  indictment  must  charge  each  and  every  element  of 
offense.  We  cannot  say  as  a  matter  of  law  that  a  bev- 
erage containing  not  more  than  one-half  of  one  per  cent 
of  alcohol  is  intoxicating. 

United  States  v.  Standard  Brewing  Co.,  251  U.  S.,  210 

(40  S.  Ct,  139); 
Evans  v.  United  States,  153  U.  S.,  584,  587  (41  S.  Ct., 
934). 

229.  When  Government  Need  Not  Elect : — 

Government  need  not  elect  between  counts  because  both 
counts  charged  an  offense  to  have  been  committed  on 
the  same  date,  when  it  is  clear  from  the  indictment  that 
counts  charged  separate  offenses. 

Billingsley  v.  United  States,  274  Fed.,  86. 

230.  When  Objections  Should  Be  Made: — 

One  who  made  affidavit  filed  with  the  information  was 
called  as  a  witness  for  the  government.  It  appeared 
upon  examination  that  he  had  no  personal  knowledge 
as  to  the  truth  of  matters  set  fortli  in  the  information. 
Objection  was  not  made  by  counsel  for  the  defendant 
until  case  reached  appellate  court.  The  court  held  this 
to  be  too  late.  Counsel  should  have  called  this  matter 
to  the  court's  attention  at  conclusion  of  witness's  testi- 
mony, and  moved  the  court  to  revoke  leave  granted  to 
file  information  and  dismiss  prosecution. 

Waffee  v.  United  States,  276  Fed.,  497. 

It  is  too  late  to  object  llial    indictment  did  not  negative 

the  fact  that  li(iu()r  was  for  export  sale  after  verdict 

had  been  reached. 

Maresca  et  al.  v.  United  States,  277  Fed.,  727. 


52  INDICTMENT   AND   INFORMATION— INJUNCTION 

231.  Where  Indictment  Charged  Offense  Under  One  Section, 
Punishment  Cannot  Be  Had  Under  Another: — 

Information  charged  that  defendant  did  "unlawfully 
transport  in  a  Buick  automobile  some  intoxicating 
liquor."  This  describes  an  offense  under  Title  II,  sec- 
tion III,  carrying  a  punishment  not  exceeding  $500  for 
the  first  offense.  On  this  information  defendant  could 
not  be  held  to  have  violated  section  21  of  the  same  act 
and  consequently  could  not  be  subject  to  the  penalty 
for  violation  of  section  21. 

Healey  v.  United  States,  276  Fed.,  711. 

Information  cannot  be  aided  by  intendment. 
Healey  v.  United  States,  276  Fed.,  711; 
United  States  v.  Post,  113  Fed.,  852-854; 
United  States  v.  Cruikshank,  92  U.  S.,  542. 

232.  Who  May  File:— 

Information  cannot  be  filed  by  special  assistant  attorney 
general. 

273  Fed.,  620. 

INJUNCTION. 

233.  Acceptance  of  Tax: — 

Equity  will  not  compel  acceptance  of  internal  revenue 
tax,  although  nothing  in  the  National  Prohibition  Act 
prohibits  acceptance  of  such  tax. 

Corneli  v.  Moors,  267  Fed.,  456. 

234.  Adequate  Remedy: — 

An  injunction  will  not  be  granted  if  there  is  an  adequate 

remedy  at  law. 

J.  &  A.  Freigberg  Co.  v.  Dawson  et  al.,  274  Fed.,  420. 

235.  Another  Injunction  on  Same  Facts: — 

District  judge  authorized  to  issue  injunctions  by  district 

court  composed  of  three  judges  acting  under  judicial 

code  266  may  be  authorized  to  issue  an  injunction  for 

similar  cases  which  are  essentially  indistinguishable  as 

to  facts. 

J.  &  A.  Freigberg  Co.  v.  Dawson  et  al.,  274  Fed.,  420. 

236.  Claim  of  Right  Must  Be  in  Good  Faith:— 

If  the  bill  states  a  case  of  rights  arising  under  the  four- 
teenth amendment  to  the  federal  constitution  it  is  well 


INJUNCTION  53 

settled  that  the  federal  court  has  jurisdiction  if  the 
claim  of  federal  right  is  made  in  good  faith  and  is  not 
frivolous,  even  though  in  the  end  it  may  turn  out  to  be 
erroneous. 

J.  &  A.  Freigberg  Co.  v.  Dawson  et  al.,  274  Fed.,  420. 

237.  Contempt  Is  Criminal  in  Nature : — 

Contempt  proceedings  for  a  violation  of  an  injunction 
are  criminal  in  nature. 

McGovern  et  al.  v.  United  States,  280  Fed.,  73. 

238.  Court  Excluded  from  Issuing  Other  Injunctions  Under 
Section  22:— 

The  authority  contained  in  section  22  of  the  National 
Prohibition  Act  to  enjoin,  excludes  the  court  from  issu- 
ing injunction  in  other  cases. 

United  States  v.  Auto  City  Brewing  Co.,  279  Fed.,  132. 

239.  Death  of  Defendant  :— 

Death  of  a  defendant  subsequent  to  the  entry  of  a  judg- 
ment convicting  him  for  contempt  in  violating  an  ordet 
abating  a  liquor  nuisance  was  abated  by  his  death. 
McGovern  et  al.  v.  United  States,  280  Fed.,  73. 

240.  Defendant  Does  Not  Lose  Control  Over  Property: — 

The  authority  contained  in  section  22  of  the  National 
Prohibition  Act  to  enjoin  does  not  prevent  the  defend- 
ant or  defendants  from  exercising  control  over  his  or 
their  property. 

United  States  v.  Auto  City  Brewing  Co.,  279  Fed.,  132. 

241.  Defendant  Must  Obey  Order: — 

Where  defendant  has  been  served  with  restraining  order 
the  entering  of  which  was  within  the  jurisdiction  of  the 
court  and  which  order  the  defendant  has  violated,  he 
cannot  in  defense  of  a  contempt  proceeding  instituted 
against  him  be  heard  to  assert  that  the  court  improvi- 
dently  entered  the  original  order.  It  is  his  duty  to 
obey  the  order  until  such  time  as  it  has  been  either 
rescinded  or  modified. 

Lewinsohn  v.  United  States,  278  Fed.,  421; 

In  Re  Coy,  127  U.  S.,  721; 

Ex  parte  Tyler,  149  U.  S.,  164. 


54  INJUNCTION 

If  court  has  jurisdiction  of  temporary  restraining  order 
it  must  be  obeyed  regardless  of  the  insufficiency  of 
the  bill. 

Allen  V.  United  States,  278  Fed.,  429. 

242.  Definition  of  Liquor: — 

"Liquor"  referred  to  in  the  National  Prohibition  Act 
means  "intoxicating  liquor." 

United  States  v.  Auto  City  Brewing  Co.,  279  Fed.,  132. 

243.  District  Attorney: — 

An  injunction  will  not  lie  against  a  district  attorney  to 
enjoin  him  from  instituting  criminal  proceedings  under 
War  Time  Act  of  November  21st,  1918,  upon  the  ground 
that  he  has  exceeded  his  authority. 

Jacob  Hoffmann  Brewing  Co.  v.  M'Elligott,  259  Fed., 
321. 

Criminal  suit  in  the  federal  court  must  be  brought  in  the 
name  of  the  United  States  and  can  only  be  brought  by 
the  United  States  attorney.  Suit  in  equity  to  enjoin 
the  United  States  attorney  from  instituting  criminal 
proceedings  under  a  statute  of  the  United  States  is 
manifestly  a  suit  against  the  United  States.  In  such  a 
case  United  States  is  sued  as  effectively  as  if  it  were  a 
defendant  by  name.  However,  there  are  exceptions, 
viz. :  If  property  rights  are  invaded  or  the  statute 
unconstitutional,  then  it  is  to  be  treated  as  nonexistent. 
Consequently  he  could  not  be  said  to  represent  the 
United  States  in  his  official  capacity.  If  under  a  valid 
statute  he  threatens  to  proceed  in  a  manner  injurious 
to  complainant's  property  rights  and  such  action  is  not 
authorized  by  statute  he  then  exceeds  his  authority, 
does  not  represent  the  United  States  and  may  be 
enjoined. 

Jacob  Hoffmann  Brewing  Co.  v.  M'Elligott,  259  Fed., 
321. 

244.  Enforcement  of  State  Statute  Enjoined: — 

A  state  statute  which  imposes  a  tax  may  be  enjoined  in  a 
proper  case  in  the  federal  court. 

J.  &  A.  Freigberg  Co.  v.  Dawson  et  al.,  274  Fed.,  420. 

245.  Enjoining  Nuisance: — 

What  it  is  necessary  to  exhibit  to  enjoin  nuisance. 
United  States  v.  Schott,  265  Fed.,  429. 


INJUNCTION  55 

246.  Facts  Well  Pleaded  :— 

All  facts  Avell  pleaded  on  defendant's  motion  to  dismiss 
bill  must  be  taken  as  true. 

Street  v.  Lincoln  Safe  Deposit  Co.,  267  Fed.,  706. 

247.  Good  Service:— 

Throup.'h  a  mistake  writ  of  injunction  was  served  upon 
a  defendant  in.stead  of  the  injunctional  order.  In  view 
of  the  fact  that  the  writ  contained  recitals  which 
advised  the  defendant  of  matters  prohibited  it  was  held 
sufficient.  However,  the  practice  is  not  approved. 
Lewinsohn  v.  United  States,  278  Fed.,  421. 

248.  Irreparable  Injury: — 

Where  a  statute  imposes  a  tax  for  the  removal  of  whiskey, 
etc.,  held  to  threaten  irreparable  injury. 

J.  &  A.  Freigberg  Co.  v.  Dawson  et  al.,  274  Fed.,  420. 

249.  Limitations  Under  Judicial  Code  266: — 

The  court  acting  under  Judicial  Code  266  has  no  juris- 
diction to  issue  tinal  decree,  but  is  constituted  for  the 
purpose  of  deciding  the  laws  for  preliminary  injiuiction. 
J.  &  A.  Freigberg  Co.  v.  Dawson  et  al.,  274  Fed.,  420. 

Where  auditor  and  attorney  general  both  being  state 
officers  are  made  party  defendants  to  a  bill  to  enjoin 
the  enforcement  of  a  state  statute,  it  was  held  to  prop- 
erly come  under  Judicial  Code  266  which  requires  the 
matter  to  be  heard  by  tliree  judges,  etc. 

J.  &  A.  Freigberg  Co.  v.  Dawson  et  al.,  274  Fed.,  420. 

Judicial  Code  266  as  amended  by  act  of  Marcli  4tli,  11)13, 
provides  that  proceedings  thereunder  in  any  federal 
court  may  be  stayed  if  "a  suit  sliall  liave  been  brought 
in  a  court  of  the  state  having  jurisdiction  thereof  under 
the  laws  of  the  state  to  enforce  such  statute  or  order; 
accompanied  by  a  stay  in  such  court  of  proceeding 
under  such  statute  or  order  pending  the  determination 
of  such  suit  by  such  state  court."  Tlie  suit  must  be 
brought  for  the  purpose  of  enforcing  the  statute  and  a 
suit  to  enjoin  such  enforcement  is  not  sufficient. 

J.  &  A.  Freigberg  Co.  v.  Dawson  et  al.,  274  Fed.,  420. 


56  INJUNCTION 

250.  Move  to  Dismiss  if  Bill  Insufficient: — 

If  the  bill  is  insufficient  defendant  may  move  to  dismiss 
it  or  may  move  to  dissolve  the  temporary  restraining 
order  under  it. 

Allen  V.  United  States,  278  Fed.,  429. 

251.  Not  Necessary  to  Allege: — 

It  is  unnecessary   to   allege  that   a   defendant  has  been 
prosecuted  and  convicted  of  a  similar  criminal  offense 
in  order  to  invoke  the  jurisdiction  of  a  court  of  equity. 
Lewinsohn  v.  United  States,  278  Fed.,  421. 

252.  Payment  Under  Protest  Considered  Voluntary: — 

Payment  under  protest  is  a  volmitary  payment  unless 
statute  provides  for  payment  under  protest ;  therefore, 
suit  would  not  lie  to  recover,  hence  there  is  no  adequate 
remedy  at  law. 

J.  &  A.  Freigberg  Co.  v.  Dawson  et  al.,  274  Fed.,  420. 

253.  Pleadings  Held  Admissible  on  Contempt  Charge: — 

Original  pleadings,  affidavits,  etc.,  are  properly  admitted 
in  evidence  on  a  hearing  of  contempt  for  a  violation 
of  an  injunction  for  the  purpose  of  showing  that  action 
was  pending  and  that  defendant  had  been  served. 
Allen  V.  United  States,  278  Fed.,  429. 

254.  Public  Officers:— 

Public  officers  may  be  enjoined  from  enforcing  unconsti- 
tutional act  because  when  so  engaged  they  do  not 
represent  the  United  States,  but  are  mere  private  indi- 
viduals, volunteers  and  intermeddlers. 

Osborn  v.   United  States  Bank,  9  Wheat.,   737;    6  L. 

Ed.,  204; 
Dobbins  v.  Los  Angeles,  195  U.  S.,  223;  25  Sup.  Ct,  18; 

49  L.  Ed.,  169; 
Ex   parte   Young,    209   U.    S.,    123;    28    Sup.    Ct,    441; 
52  L.   Ed.,   714;    13  L.  R.  A.    (N.  S.),  932;    14  Ann. 
Cas.,  764; 
Wes.    Un.    Tel.    Co.    v.   AndreAvs,    216    U.    S.,    165;    30 

Sup.  Ct.,  286;  54  L.  Ed.,  430; 
Herndon  v.  Chi.,  Rock  Island  &  Pac.  Ry.,  218  U.  S., 
135;  30  Sup.  Ct.,  633;  54  L.  Ed.,  970; 
Philadelphia  Co.  v.  Stimson,  283  U.  S.,  605;  32  Sup. 
Ct,  340;  56  L.  Ed.,  570; 
Truax  v.  Raich,  239  U.  S.,  33;    56  Sup.  Ct.,  7;    60  L. 
Ed.,  131;  L.  R.  A.  1916  D,  545  Ann.  Cas.  1917  B.  283; 


INJUNCTION  57 

Wilson  V.  New,  243  U.  S.,  332;   37  Sup.  Ct.,  298;   61 

L.  Ed.,  755;  L.  R.  A.  1917  E,  938;  Ann.  Cas.  1918  A, 

1024; 
Hammer  v.   Dagenhart,   247   U.   S.,   251;    38   Sup.   Ct., 

529;  62  L.  Ed.,  1101;  Ann.  Cas.  1918  E,  724; 
Jacob  Hoffmann  Brewing  Co.  v.  M'Elligott,  259  Fed., 

525,  C.  C.  A.; 

Scatena    et    al.    v.    Caffey    and    Edwards    (Southern 

District  of  New  York,  August  20,   1919),  260   Fed., 

756. 

Officers  and  agents  acting  under  an  unconstitutional  act 
are  not  acting  in  the  name  of  the  United  States  and 
may  be  enjoined. 

Hannah  &  Hog  v.  Clyne,  263  Fed.,  599; 

See  Poindexter  v.  Green  Hon,  114  U.  S.,  270. 

255.  Purpose  of  Injunction: — 

Injunctions  having  reference  to  liquor  cases  arising  under 
the  National  Prohibition  Act  have  as  their  purpose  the 
maintenance  of  the  status  quo. 

United  States  v.  Auto  City  Brewing  Co.,  279  Fed.,  132. 

256.  Reasonable  Doubt: — 

Benefit  of  a  reasonable  doubt  should  be  given  to  the  state 
since  the  unconstitutionality  should  clearly  appear 
before  injunction  should  issue. 

J.  &  A.  Freigberg  Co.  v.  Dawson  et  al.,  274  Fed.,  420. 

257.  Restraining  Public  Officials: — 

It  is  well  settled  by  the  decisions  of  the  supreme  court 
that  a  court  of  equity  may  restrain  prosecuting  officers 
either  of  state  or  of  the  federal  government  as  well  as 
other  public  officials  to  prevent  a  series  of  unauthorized 
prosecutions  which  would  prove  ruinous  to  persons 
affected. 

Jacob  Hoffmann  Brewing  Co.  v.  M'Elligott,  259  Fed., 
321. 

258.  Section  22  Fixes  Time  of  Temporary  Injunction: — 

The  specific  provision  of  section  22,  National  I'rohibitioa 
Act,  prevail  over  a  court  rule  or  a  general  statute  as  to 
the  time  during  which  a  tenqjorary  iiijiiiict  ion  may 
remain  in  force. 

Lewinsohn  v.   United  States,  278  Fed.,  421. 


58  INJUNCTION— INSTRUCTIONS 

259.  Service : — 

It  is  not  necessary  to  serve  complainant  with  process  to 
give  the  court  jurisdiction  over  cross  complainants. 
Grossman  v.  United  States,  280  Fed..  683; 
Kingsbury  v.  Buckner,  134  U.  S.,  676. 

260.  To  Prevent  Nuisance: — 

The  National  Prohibition  Act  of  October  28th,  1919,  pro- 
vides that  a  place  where  liquor  is  illegally  sold  becomes 
a  public  nuisance  and  that  a  temporary  injunction  may 

be  issued  to  abate  same. 

United  States  v.  Schott,  265  Fed.,  429. 

261.  Volstead  Act  Did  Not  Create  Equity  Powers: — 

Federal  courts  possessed  and  exercised  equity  jurisdiction 
long  before  the  passage  of  the  National  Prohibition  Act. 
Grossman  v.  United  States,  280  Fed.,  683. 

262.  Wrong  Construction  of  Statutes: — 

When  a  district  attorney  insists  upon  construing  a  statute 
incorrectly  which  would  bring  irreparable  injury  to 
parties,  relief  may  be  had  by  injunction. 

Jacob  Hoffmann  Brewing  Co.  v.  M'Elligott,  259  Fed., 
321. 

INSTRUCTIONS. 

263.  Court  May  Instruct  as  to  Argument : — 

It  is  not  error  to  caution  the  jury  that  they  must  not  be 
misled  by  argument  of  counsel. 

Laurie  v.  United  States,  278  Fed.,  934. 

264.  Instruction  on  Transportation  Held  Error : — 

A   defendant  purchased   whiskey   in   one   state   and   was 

carrying  it  across  another  into  a  third  state.    The  court 

instructed  the  jury  that  if  he  transferred  any  part  of  it 

within  the  state  to  another  car  it  constituted  a  violation 

of   the   Keed   amendment.      This   instruction  was   held 

error. 

Durst  V.  United  States,  266  Fed.,  65. 

265.  Reasonable  Doubt: — 

Definition  of  reasonable  doubt. 

United  States  v.  King,  34  Fed.,  302; 
United  States  v.  Jones,  31  Fed.,  718; 


INSTRUCTIONS  59 

Hopt  V.  People,  120  U.  S.,  430; 
United  States  v.  Meagher,  37  Fed.,  875. 

266.  Sale  :— 

Defendant  was  charged  with  carrying  on  business  with 
retail  liquor  dealers  without  payment  of  tax.  The  court 
charged  "that  proof  of  a  single  sale  might  warrant 
conviction."     Held.     Not    reversible    error    under    the 

evidence. 

Weichen  v.  United  States,  262  Fed.,  941. 

267.  State  Practice  Not  Followed:— 

Federal  practice  in  regard  to  form,  etc.,  of  instructions 
does  not  follow  state  practice. 

Steers  v.  United  States,  192  F.,  1. 

268.  Supplemental  Charge: — 

For  supplemental  charge  held  not  to  be  reversible,  see : 
Suslak  V.  United  States,  213  Fed.,  913; 
Shea  V.  United  States,  260  Fed.,  807. 

For  instructions  held  error,  see  : 

Starr  v.  United  States,  153  U.  S.,  614. 

269.  The   Use    of   Facts   in   Recent   Trials   to   Illustrate   in 
Charge : — 

Court  should  not  refer  to  recent  trials  for  parallels  in 
charging  the  jury. 

Whitney  v.  United  States,  263  Fed.,  477. 

270.  Where  Defendant  Sold  Interest  in  Property: — 

Where  it  was  claimed  under  a  prosecution  for  engaging 
in  retail  liquor  business,  without  having  paid  the  tax, 
that  one  of  the  defendants  had  sold  out  his  interest  at 
a  time  before  the  first  date  named  in  the  indictment 
and  that  he  was  after  that  time  only  a  clerk  for  the 
purchaser,  it  was  held  tliat  the  court  properly  refused 
to  grant  the  charge  that  "if  the  jury  found  the  sale  of 
the  business  to  have  been  made  in  good  faith  the 
defendant  should  be  acquitted,"  for  the  reason  that  he 
might   still   be   guilty,   although   a  sale  had  been   made 

in  good  faith. 

Mayer  v.  United  States,  259  Fed.,  216. 

271.  Written  Instructions  to  Jury: — 

it    is  (jiscrcl  ionary   witli   llic   court   to   pci-mit    written   in- 
structions to  be  taken  to  the  jury  room. 
Garst  V.  United  States,  180  Fed.,  339. 


60  INTENT 

INTENT. 

272.  Inference  of  Intent  Warranted: — 

Evidence  showed  that  defendant  had  still  on  his  premises 
and  that  he  was  sitting  near  it  and  that  in  close  prox- 
imity were  found  ingredients  for  making  liquor.  It 
was  held  this  was  sufficient  to  warrant  jury  in  an 
inference  of  intent  to  violate  the  law. 

Violette  et  al.  v.  United  States,  278  Fed.,  163. 

273.  Intent  Alone  Not  Enough: — 

It  is  a  fundamental  doctrine  of  the  law  that  no  man  is  to 

be  punished  as  a  criminal  unless  his  intent  is  wrong,  and 

that  such  wrong  intent  must  ordinarily  be  followed  by 

a  wicked  act — the  mere  intention  not  injuring  anyone, 

unless   developed   into   some   act   to   give   it  form   and 

effect. 

United  States  v.  Houghton,  14  Fed.,  549. 

274.  Presumption : — 

When  one  knowingly  does  an  act  the  presumption  arises 

that   he   intended   the   results   which   would   naturally 

follow. 

Reynolds  v.  United  States,  150  U.  S.,  447. 

275.  Proof  of  Other  Act  Permissible  if  to  Show  Intent: — 

Facts  brought  out  on  trial  of  defendant  charged  with 
transportation  of  liquor  which  proves  him  engaged  in 
the  traffic  at  that  time  held  competent  as  showing  intent, 
although  it  intended  to  show  other  offenses. 

Wagman  v.  United  States,  269  Fed.,  568; 

Tuclcer  v.  United  States,  224  Fed.,  833-840. 

It  is  not  error  to  admit  evidence  of  other  acts  of  the 
defendants  when  such  acts  are  similar  in  nature  and 
tend  to  throw  light  on  the  intent  with  which  the  par- 
ticular act  was  done  with  which  the  defendant  stands 

charged. 

Walsli  V.  United  States,  174  Fed.,  615; 
Brown  v.  United  States,  142  Fed.,  1; 
Colt  V.  United  States,  190  Fed.,  305. 

Intent  changed  the  rules  as  regards  admission  of  evidence 
tending  to  prove  other  offenses. 

Marshall  v.  United  States,  197  Fed.,  511; 
Prettyman  v.  United  States,  180  Fed.,  30. 


INTENT— JEOPARDY  61 

276.  Rebuttal  :— 

Wrongful  intent  may  be  rebutted. 

Hicks  V.  United  States,  150  U.  S.,  447. 

JEOPARDY. 

277.  Conviction  in  Federal  Court  Barred: — 

If  a  defendant  is  convicted  under  the  state  la^v  he  cannot 
again  be  convicted  under  the  federal  law  on  the  same 
facts  or  for  the  same  offense. 

United  States  v.  Peterson,  268  Fed.,  864. 

278.  Conviction  Under  Ordinance  Not  a  Bar: — 

A  conviction  under  an  ordinance  is  not  a  bar  to  a  prosecu- 
tion in  the  federal  court  on  the  same  fact. 
United  States  v.  Peterson,  268  Fed.,  864. 

279.  Disagreement  and  Discharge  of  Jury  as  a  Bar: — 
Where  prisoner  was  tried  for  felony  and  the  case  resulted 

in  a  disagreement,  after  which  the  jury  was  discharged 
without  consent  of  the  prisoner,  he  cannot  again  be  tried 
for  the  same  offense. 

Ex  parte  Glenn,  111  Fed.,  257; 

(Order  reversed.)     Moss  v.  Glenn,  189  U.  S.,  506. 

When  plea  of  former  jeopardy  will  not  be  heard  where 
the  jury  has  disagreed  and  been  discharged. 

Dreyer  v.  People  of  the  State  of  Illinois,  187  U.  S.,  71; 
Keerl  v.  State  of  Montana,  213  U.  S.,  135; 
United  States  v.  Jim  Lee,  123  Fed.,  741. 

280.  Jurisdiction  of  First  Offense  Necessary: — 

There  is  no  jeopardy  in  a  case  where  indictment  was' dis- 
missed prior  to  the  time  case  was  submitted  to  the  jury 
because  indictment  did  not  charge  a  crime,  although 
the  jury  had  been  sworn  to  hear  the  case,  as  the  court 
did  not  have  jurisdiction  of  the  first  offense. 
United  States  v.  Ragoff,  163  Fed.,  311. 

281.  The  Test  as  to  Jeopardy: — 

The  test  when  double  jeopardy  is  claimed  is  whether  the 
same  evidence  is  required  to  sustain  the  same  charges. 
If  not,  then  the  fact  that  both  charges  grow  out  of  one 
transaction  does  not  make  a  single  offense,  when  two 
are  defined  by  the  statute. 

United  States  v.  Sacein  Rouhana  Farhat,  269  Fed.,  39; 
Morgan  v.  Devine,  237  U.  S.,  632. 


62  JEOPARDY— JURY 

A  conviction  or  acquittal  upon  one  indictment  is  no  bar 
to  a  subsequent  conviction  and  sentence  upon  another, 
unless  the  evidence  required  to  support  the  conviction 
upon  one  of  these  would  have  been  sufficient  to  warrant 
conviction  upon  the  other.  The  test  is  not  whether  the 
defendant  has  already  been  tried  for  the  same  act,  but 
whether  he  has  been  put  in  jeopardy  for  the  same 
offense.  A  single  act  may  be  an  offense  against  two 
statutes  and  if  each  statute  required  proof  of  an  addi- 
tional fact  which  the  other  does  not,  an  acquittal  or 
conviction  under  the  same  statute  does  not  exempt  the 
defendant  from  prosecution  and  punishment  under  the 

other. 

Gavieres  v.  United  States,  220  U.  S.,  338; 
Carter  v.  McClaughry,  183  U.  S.,  365; 
Burton  v.  United  States,  202  U.  S.,  344; 
Kelly  V.  United  States,  258  Fed.,  392; 
Manning  v.  United  States,  275  Fed.,  29. 

JURY. 

282.  Article  III,  Section  2,  Construed  in  Light  of  Common 
Law: — 

Section  2  of  article  III  of  the  constitution  requires  that 
''the  trial  of  all  crimes,  except  in  case  of  impeachment, 
shall  be  by  jury."  This  provision  is  to  be  construed  in 
the  light  of  the  common  law  as  it  existed  when  the 
constitution  was  adopted,  and  the  constitutional  right 
of  trial  by  jury  limited  to  that  class  of  cases,  civil  or 
criminal,  which  at  common  law  were  triable  by  jury. 

Law  V.  United  States,  169  Fed.,  89; 

Gallon  V.  Wilson,  127  U.  S.,  540; 

Capital  Tractor  Co.  v.  Hof,  174  U.  S.,  1; 

Schick  V.  United  States,  195  U.  S.,.65. 

283.  Challenge  to  Grand  Jury: — 
Grand  jurors  may  be  challenged. 

United  States  v.  Richardson,  28  Fed.,  61. 

284.  Definition:— 

Jury  means  a  tribunal  of  twelve  men  presided  over  by  a 
court  and  hearing  the  allegations,  evidence  and  argu- 
ments of  the  parties. 

Freeman  v.  United  States,  227  Fed.,  743; 

Capital  Tractor  Co.  v.  Hof,  174  U.  S.,  1. 


JURY  63 

"Juror"  refers  to  both  grand  and  petit  jurors. 
Agnew  V.  United  States,  165  U.  S.,  36. 

285.  Jury  May  View  Premises: — 

It  is  not  error  to  permit  jury  to  view  premises  when 
defendants  are  permitted  to  be  present  at  time  view  is 
taken  by  the  jury. 

Reid  et  al.  v.  United  States,  276  Fed.,  253. 

286.  Jury  of  Twelve  Not  Waived:— 

Defendant  cannot  consent  to  be  tried  by  less  than  twelve 
men  when  jury  has  been  impaneled. 

Dickinson  v.  United  States,  159  Fed.,  801. 

287.  Opinion  of  Juror: — 

A  juror  is  not  disqualified  if  he  has  an  opinion,  if  he 
states  that  it  will  not  affect  his  verdict  and  the  court  is 
satisfied  of  the  truth  of  his  statement. 

Hoyt  V.  United  States,  273  Fed.,  798; 

Reynolds  v.  United  States,  98  U.  S.,  145; 

Partan  v.  United  States,  261  Fed.,  515-17. 

288.  Question  for  the  Jury: — 

Time  when  liquor  is  manufactured  in  reference  to  before 
or  after  the  National  Prohibition  Act  became  effective 
is  a  question  for  the  jury. 

United  States  v.  Schwartz,  276  Fed.,  397. 

289.  When  Court  May  Excuse  Juror: — 

There  is  no  valid  g-round  of  complaint  because  court  of 
its  own  motion  excuses  juror  thought  by  the  court  to  be 
impartial  where  it  appears  that  a  duly  qualified  juror 
was  secured  to  replace  one  released  who  was  accepted 
without  objections  by  botli  parties. 

Vesely  v.  United  States,  276  Fed.,  693. 

290.  When  Jury  Trial  May  Be  Waived:— 

Defendant  may  waive  trial  l)y  jury  when  charged  with 
"petty  offense." 

Law  V.  United  States,  169  Fed.,  89. 

Consent  to  waiver  in  a  criminal  case  cannot  hind  the 
defendant  since  criminal  charges  are  not  the  subject 
of  arbitration  and  any  infliction  of  criiniual  ])unishinent 
upon  an  individual  except  in  pursuance  of  the  law  of 


64  JURY— MOTION  TO  DIRECT  VERDICT 

the  land,  is  a  wrong  done  to  the  state,  whether  the 
individual  assented  or  not. 

Freeman  v.  United  States,  227  Fed.,  743; 

Grain  v.  United  States,  162  U.  S.,  625. 

291.  When  Service  Within  Year  Does  Not  Disqualify: — 

Service  as  a  petit  juror  in  a  state  court  does  not  disqualify 
juror  in  federal  court. 

Papernoew  v.  Standard  Oil  Co.  of  N.  Y.,  228  Fed.,  399. 

Sec.  286,  Federal  Judicial  Code,  prohibiting  juror  from 
serving  more  than  once  in  the  year,  has  reference  to 
petit  jurors  and  not  grand  jurors. 

National  Bank  v.  Schufelt,  145  Fed.,  509. 

292.  When  Special  Officer  May  Serve: — 

The  court  may,  if  it  is  of  the  opinion  that  the  marshal  is 

an  interested  party,  order  special  officer  to  serve  the 

venire. 

Johnson  v.  United  States,  247  Fed.,  92. 

MOTION   TO   DIRECT  VERDICT. 

293.  Facts  Warranting  Direction  of  Verdict: — 

Evidence  of  facts  that  are  as  consistent  with  innocence 
as  with  guilt  is  insufficient  to  sustain  a  conviction,  unless 
there  is  substantial  evidence  of  facts  which  exclude 
every  other  hypothesis  but  that  of  guilt,  it  is  the  duty 
of  the  trial  judge  to  instruct  the  jury  to  return  a  verdict 
of  not  guilty. 

Isbell  V.  United  States,  227  Fed.,  792; 

Union  Pacific  Coal  Co.  v.  United  States,  173  Fed.,  737; 

Vernon  v.  United  States,  146  Fed.,  121; 

Hayes  v.  United  States,  169  Fed.,  101. 

294.  Motion  Waived: — 

Motion  for  a  directed  verdict  was  not  made  at  the  close 
of  the  entire  evidence,  but  only  at  the  close  of  the 
government's  case.  The  subsequent  introduction  of 
evidence  by  the  defendant  waived  any  exceptions  taken 
to   dismissal   of   the   motion   at   the    conclusion   of   the 

government's  case. 

Alderman  et  al.  v.  United  States,  279  Fed.,  259; 
Sandals  v.  United  States,  213  Fed.,  569; 
Goldman  v.  United  States,  220  Fed.,  57; 
Kasle  V.  United  States,  233  Fed.,  872. 


MOTION  TO  DIRECT  VERDICT  65 

295.  Opening  Statement  May  Give  Ground  for  Instruction: — 

When  b}'  the  opening  statement  the  prosecuting  attorney 
in  a  criminal  case  admitted  a  fact  which  would  neces- 
sarily prevent  a  conviction,  and  there  was  opportunity 
for  the  correction  of  any  ambiguity,  error  or  admission 
in  the  statement,  the  court  may  upon  motion  close  the 
ease  by  directing  a  verdict  for  the  accused. 

United  States  v.  Dieterich,  126  Fed.,  676; 

Oscanyan  v.  Arms  Co.,  103  U.  S.,  261; 

Liverpool  etc.  Co.  v.  Commissioners,  113  U.  S.,  33. 

296.  Refusal  Held  Not  Error: — 

Held  not  error  to  refuse  to  direct  verdict  of  acquittal 
because  indictment  would  not  sustain  a  conviction. 

Stearns  v.  United  States,  152  Fed.,  900. 

297.  Result  of  Denial: — 

At  the  close  of  the  evidence  on  the  part  of  the  prosecution 
counsel  for  the  defendant  moved  the  court  to  instruct 
the  jury  to  return  a  verdict  of  not  guilty.  This  motion 
the  court  denied,  to  which  exception  was  taken.  This 
denial  left  it  open  to  the  court  to  consider  whether 
there  was  any  evidence  to  sustain  the  verdict,  though 
not  to  pass  upon  the  weight  or  sufficiency. 

Hedderly  v.  United  States,  193  Fed.,  571; 

Wiborg  V.  United  States,  163  U.  S.,  632. 

298.  When  Court  Need  Not  Instruct  :— 

When  there  are  several  counts  before  the  jury,  it  is  not 
incumbent  on  the  court  to  require  a  finding  on  one  of 
the  counts  specifically  if  confusion  might  be  caused  in 
the  minds  of  the  jury  thereby. 

Baldwin  v.  United  States,  238  Fed.,  793. 

299.  When  It  Is  Error  to  Direct  Verdict:— 

It  is  not  competent  for  the  court  in  a  criminal  case  to 
instruct  the  jury  peremptorily  to  find  the  accused  guilty 
of  the  offense  charged  or  of  any  criminal  offense  less 
than  that  charged. 

Sparf  &  Hansen  v.  United  States,  156  U.  S.,  51; 

United  States  v.  Taylor,  11  Fed.,  470; 

Cummings  v.  United  States,  232  Fed.,  844. 


66  NEW   TRIAL 

NEW    TRIAL. 

300.  Court  May  Hear  Evidence  on  Affidavits : — 

Motion  for  new  trial  gave  as  one  of  the  reasons  why  such 
new  trial  should  be  granted;  that  the  marshal  while 
in  charge  of  the  jury  answered  inquiries  put  to  him  by 
various  members  of  the  jury.  The  court  was  held  to  be 
justified  in  hearing  evidence  to  ascertain  the  character 
of  remarks  made  by  the  marshal  to  the  jury  for  the 
purpose  of  determining  whether  or  not  they  were  of 
prejudicial  nature. 

Chambers  v.  United  States,  237  Fed.,  513. 

301.  Determination: — 

Courts  should  not  have  reasonable  doubt  in  refusing  new 

trial. 

United  States  v.  Jones,  32  Fed.,  569. 

302.  Diligence  Is  Required  to  Be  Shown: — 

Diligence  is  required  to  be  shown  for  purpose  of  securing 
new  trial  on  grounds  of  newly  discovered  evidence. 
Victor  Fuel  Co.  v.  Tomyawovich,  232  Fed.,  662. 

303.  Discretionary  with  Court: — 

Motion  for  new  trial  is  directed  to  the  sound  discretion 
of  trial  court  and  is  not  subject  to  reversal  or  review 
unless   it   clearly   appears   that   the   court    abused   this 

discretion. 

Laurie  v.  United  States,  278  Fed.,  934; 
West  V.  United  States,  258  Fed.,  413. 

Facts  showing  abuse  of  discretion  in  refusing  new  trial. 
Pettine  v.  Territory  of  New  Mexico,  201  Fed.,  489. 

304.  Impeachment  of  Verdict: — 

Affidavit  of  jurors  as  to  what  took  place  in  jury  room  will 
not  serve  to   impeach  the  verdict  on  motion  for  new 

trial. 

United  States  v.  Doubner,  17  Fed.,  793. 

305.  Improper  Remarks: — 

Remark  of  prosecuting  attorney  made  in  reference  to 
defendant  not  taking  the  stand  held  to  be  ground  for 
new  trial. 

Rule  as  to  sufficiency : 

V\^ilson  V.  United  States,  149  U.  S.,  60. 


NEW  TRIAL— NUISANCE  67 

Rule  as  to  suffieieney  of  evidence : 

United  States  v.  Ducowman,  54  Fed.,  138; 
United  States  v.  Doubner,  17  Fed.,  793. 

Goverument  attorney  made  improper  remarks  which  were 
not  objected  to  until  the  time  of  presenting  the  motion 
for  new  trial.    Held  objection  was  made  too  late. 
Smith  V.  United  States,  231  Fed.,  25. 

306.  Misconduct  of  Jury: — 

It  is  discretionary  with  court  as  to  granting  of  new  trial 
where  there  has  been  misconduct  on  part  of  the  jury. 

Buclveye    Powder    Co.    v.    Du    Pont    Powder    Co.,    223 
Fed.,  881. 

307.  Must  Challenge: — 

When  a  party  has  an  opportunity  to  challenge  juror  and 
failed  to  do  so,  he  will  not  be  entitled  to  ncAv  trial  after 
verdict  because  of  the  juror's  disqualifications. 

Papernow  v.  Standard  Oil  Co.  of  N.  Y.,  228  Fed.,  399; 

Kohl  V.  Lehlback,  160  U.  S.,  293. 

308.  Newly  Discovered  Evidence : — 

Held  not  to  constitute  newly  discovered  evidence. 

Skerman  v.  Philadelphia  &  R.  Ry.  Co.,  225  Fed.,  85. 

309.  Not  Subject  to  Review: — 

The  overruling  of  a  motion  for  a  new  trial  cannot  be 
reviewed  by  the  appellate  court. 

Hunter  v.  United  States,  264  Fed.,  831; 

Bishop  Co.  V.  Shelhorse,  141  Fed.,  648; 

Pochontas   Distilling   Co.  v.   United   States,   218   Fed., 

782; 
Moore  v.  United  States,  150  U.  S.,  62; 
Holder  v.  United  States,  150  U.  S.,  92. 

310.  Setting  Aside  Order:— 

When  court  may  set  aside  order  granting  new  trial. 
Storey  v.  Storey,  221  Fed.,  262. 

NUISANCE. 

311.  A  Misdemeanor: — 

The  offense  of  maintaining  a  nuisance  is  a  misdemeanor 
which  may  be  pr()se<nited  by  informal  ion. 
Young  V.  United  States,  272  Fed.,  967; 
Weeks  v.  United  States,  216  Fed.,  292. 


68  NUISANCE 

312.  Amendment. 

Bill  may  be  amended  so  as  to  state  a  cause  of  action. 
United  States  v.  Cohen,  268  Fed.,  420. 

313.  Bill:— 

Bill  must  be  si^ecific. 

United  States  v.  Butler,  278  Fed.,  677. 

314.  Bill  for  Abatement: — 

It  is  necessary  that  a  bill  for  abatement  of  a  nuisance 
should  set  out  facts  which  show  that  the  legal  remedy 
under  the  act  is  inadequate,  otherwise  the  proceeding 
might  deprive  the  defendant  of  his  constitutional  rights 
of  trial  by  jury. 

United  States  v.  Cohen,  268  Fed.,  420. 

It  is  not  necessary  in  a  bill  to  abate  a  nuisance  to  allege 
that  sales  were  in  interstate  commerce. 

United  States  v.  Cohen,  268  Fed.,  420. 

315.  Continuous  Possession: — 

The  continuous  possession  of  liquor  need  not  be  alleged. 
Feigen  v.  United  States,  279  Fed.,  107. 

316.  Definition:— 

The  definition  of  a  common  nuisance  for  which  one  may  be 
prosecuted  criminally  and  a  common  nuisance  for  which 

one  may  be  enjoined  are  the  same. 

United   States   v.   Eilert   Brewing  and   Beverage   Co., 
278  Fed.,  659. 

Generally  a  common  law  nuisance  is  a  wrong  arising  from 
an  unreasonable  or  unlawful  use  of  a  house,  premises, 
place  or  property  to  the  discomfort,  annoyance,  incon- 
venience or  damage  of  another. 

United  States  v.  Cohen,  268  Fed.,  420. 

The  word  nuisance  has  a  well  defined  meaning  in  the  law 
and  a  thing  cannot  be  declared  a  nuisance  by  statute 
and  abated  as  such  when  in  fact  it  is  obviously  not  a 
nuisance. 

United  States  v.  Cohen,  268  Fed.,  420. 

It  is  presumed  that  congress  when  using  the  word  nuis- 
ance had  in  mind  its  usual  and  ordinary  legal  signifi- 
cance, realizing  that  they  could  not  pass  a  law  which 


NUISANCE  69 

had  the  effect  of  Miping  out  the  constitutional  rights  of 
citizens  in  private  property. 

United  States  v,  Cohen,  268  Fed.,  420. 

317.  Essentials  of  Bill:— 

Bill  must  set  forth  clearly  that  liquor  Avas  sold,  kept  or 
bartered  habitually,  continually  or  recurrently. 
United  States  v.  Butler,  278  Fed.,  677; 
Tuttle  V.  Church,  53  Fed.,  422. 

318.  Evidence  Held  Sufficient:— 

Evidence  held  sufficient  to  convict  of  keeping  a  nuisance 
in  violation  of  the  National  Prohibition  Act. 
Herine  v.  United  States,  276  Fed.,  806. 

Information  charging  the  defendant  did  unlawfully,  will- 
fully and  knowingly  violate  Section  21,  of  Title  II  of 
the  Act  of  October  28th,  1919,  kno^vn  as  the  National 
Prohibition  xVct,  by  maintaining  a  common  nuisance  in 
that  they  did  unlawfully,  willfully  and  knowingly  keep 
on  the  premises  certain  intoxicating  liquors.  Held  suffi- 
cient. 

Kathriner  et.  al.  v.  United  States,  276  Fed.,  808. 

Evidence  held  sufficient  to  establish  nuisance  under  the 
National  Prohibition  Act. 

United   States   v.  Eilert   Brewing  and   Beverage   Co., 
278  Fed.,  659. 

319.  Indictment  Held  Insufficient: — 

Indictment  for  maintaining  a  common  nuisance  held  in- 
sufficient. 

United  States  v.  Dowling,  278  Fed.,  630. 

Bill  of  complaint  in  following  language  held  insufficient 
to  charge  nuisance:  "that  the  defendants  are  maintain- 
ing and  conducting  a  common  nuisance  on  tlie  premises 
herein  described,  in  that  intoxicating  li(iuor  containing 
more  than  one-lialf  of  one  per  cent  of  alcohol  by  volume 
has  been  and  is  being  sold  in  the  premises." 

United  States  v.  Butler,  278  Fed.,  679; 

Mulger  V.  Kansas,  123  U.  S.,  623  at  page  672. 

320.  Information  Adequate  if  it  Follows  Statute : — 

An  informal  ion  charged  violation  of  that  section  of  the 
National  Prohibition  Act  as  regards  a  nuisance.    It  was 


70  NUISANCE 

held  as  long  as  the  charge  followed  the  statute  it  was 
sufficient  in  description  to  inform  the  defendant  of  the 
nature  of  the  offense  charged  and  of  such  certainty  as 
to  advise  him  of  the  accusation  made. 

Young  V.  United  States,  272  Fed.,  967; 

United  States  v.  Simmons,  96  U.  S.,  360. 

"Where  counts  of  an  information  charged  that  possession 
is  prohibited  and  unlawful  and  follows  the  statute  it  is 
a  sufficient  charge  of  the  maintenance  of  a  nuisance. 
Feigen  v.  United  States,  279  Fed.,  107. 

321.  Information  and  Belief: — 

Information  and  belief  will  not  warrant  a  court  in  issuing 
an  injunction. 

United  States  v.  Butler,  278  Fed.,  677. 

322.  Responsibility  of  Ov/ner: — 

To  be  a  violation  of  Title  IT,  Section  22,  of  the  National 
Prohibition  Act  it  must  be  shown  that  premises  were 
unlawfully  used  with  the  consent  of  the  owner  or  Avith 
his  knowledge  or  such  circumstances  be  shown  which 
would  force  one  to  conclude  that  he  had  good  reason 
to  believe   that  unlawful  use  was  being   made   of  his 

property. 

United  States  v.  Butler,  278  Fed.,  677. 

The  owners  of  property  having  been  charged  with  main- 
taining a  nuisance  set  up  in  their  petition  that  they  were 
desirous  of  respecting  the  law,  anxious  to  protect  1heir 
property,  asserting  that  they  were  innocent  of  any  wrong 
doing  and  that  they  wished  that  the  lease  of  the  present 
tenant  be  terminated  if  he,  the  tenant,  had  violated  any 
law,  for  if  such  was  the  case  it  was  done  without  their 
knowledge.  The  court  said  that  if  these  facts  were  es- 
tablished it  would  appeal  favorably  to  a  court  of  equity. 
The  court  might  not  conclude  to  dispose  the  landlord 
if  it  appeared  that  he  was  innocent  of  the  use  to  which 
his  property  was  being  put  by  the  tenant  and  manifested 
a  desire  to  co-operate  in  abating  the  nuisance. 
Grossman  v.  United  States,  280  Fed.,  683. 

Where  a  tenant  has  been  arrested  for  violation  of  the  law 
as  regards  National  Prohibition  Act  and  proceedings 
commenced  to  abate  a  nuisance.     The  landlord  cannot 


NUISANCE  71 

set  up  a  defense  of  iiiuoeence  if  he  lias  reasonable 
grounds  to  suspicion  as  to  the  use  his  property  is  being 
put  to.  His  attitude  toward  the  tenant  after  being  in- 
formed of  the  latter  "s  misconduct  might  be  determina- 
tive of  his  mind. 

Grossman  v.  United  States,  280  Fed.,  683. 

323.     Sale  :— 

Single  sale  of  liquor  where  it  is  established  that  there  was 
other  liquor  in  possession  of  the  defendant  is  sufficient 
to  constitute  a  nuisance. 

United   States   v.   Eilert   Brewing   and   Beverage  Co., 
278  Fed.,  659. 

There  can  be  an  almost  irrefutable  conclusion  drawn  from 
a  single  sale  of  intoxicating  liquor  provided  the  facts 
surrounding  such  sale  warrant  the  inference  that  it  was 
one  of  the  ordinary  and  usual  incidents  of  the  business 
then  being  conducted. 

Lewinsohn  v.  United  States,  278  Fed.,  421. 

Section  21  of  the  National  Prohibition  Act,  Title  IT,  which 
defines  a  nuisance,  applies  to  the  keeping  of  li(|uor  only 
when  it  is  kept  for  sale,  barter  or  commercial  purposes. 

Street  v.  Lincoln  Safe  Deposit  Co.,  254  U.  S.,  88.     (41 

S.  Ct.,  31.) 

A  single  sale  of  intoxicating  liquor  does  not  constitute 
nuisance. 

United  States  v.  Cohen,  268  Fed.,  420. 

It  is  not  the  crime  of  selling  lifjuor  or  selling  the  single 
drink  or  liquor  by  a  given  person  at  a  given  ])lace  which 
constitutes  a  nuisance.  It  is  the  maintenance  and  use  of 
the  room,  house  or  place  as  a  situs  for  the  doing  thereof 
of  unlawful  or  criminal  acts  which  constitutes  a  nuisance. 
United  States  v.  Cohen,  268  Fed.,  420. 

It  is  not  necessary  to  prove  actual  knowledge  of  sale  on 
the  part  of  the  owner  if  there  is  sufficient  evidence  to 
show  that  the  defendant  maintained  a  nuisance  contrary 
to  the  National  Pi-ohibiiion  Act. 

WiggiiLs  V.  United  States,  272  Fed.,  41. 


72  NUISANCE— OFFICERS 

324.  Sufficiency  of  Affidavits : — 

Affidavits  which  are  insufficient  to  authorize  temporary 
injunction  to  abate  a  nuisance  do  not  require  dismissal 
of  bill. 

United  States  v.  Cohen,  268  Fed.,  420. 

325.  Sufficiency  of  Evidence: — 

Evidence  held  sufficient  to  convict  of  maintaining  a  nui- 
sance. 

Young  V.  United  States,  272  Fed.,  967; 
United  States  v.  Shott,  265  Fed.,  429. 

OFFICERS. 

326.  Arrest  Without  Warrant:— 

Rule  as  to  when  officer  may  arrest  without  warrant. 
Castel  V.  Lewis,  254  Fed.,  917. 

327.  Federal  Officers  Restrained  by  State  Authorities : — 

Federal  court  has  jurisdiction  to  inquire  into  detention  of 
federal  officers  by  state  authorities. 

Ex  Parte  Ramsey,  265  Fed.,  950; 
Ex  Parte  Shears,  265  Fed.,  959. 

328.  Officers  Not  Immune  from  Arrest: — 

No  official  gains  any  immunity  from  ordinary  legal  pro- 
cess by  virtue  of  his  office.    When  he  steps  outside  his 
powers  he  becomes  subject  to  the  usual  remedies. 
In  Re:    Wenistein,  271  Fed.,  at  page  6. 

329.  Powers  of  Federal  Officers  Limited  to  Federal  Viola- 
tion : — 

Federal  officers  and  courts  have  no  power  or  jurisdiction 
to  arrest,  try  or  punish  a  citizen  unless  the  act  with 
which  he  is  charged  violates  a  federal  statute. 
Ex  Parte  Harvell,  267  Fed.,  997. 

330.  Prohibition  Agents  Not  Officers  of  the  Court: — 

Prohibition  agents  are  not  officers  of  the  court,  conse- 
quently court  cannot  in  a  summary  proceeding  order 
agent  to  return  automobile  seized. 

Lewis  V.  McCarthy  et.  al.,  274  Fed.,  496; 
Chin  K.  Shue,  198  Fed.,  282; 
United  States  v.  Hee,  219  Fed.,  1019. 


OPINION— PENALTIES  73 

OPINION. 

331.     Expert  May  Give  Opinion  as  to  Alcoholic  Content  of 
Liquor : — 

An  admitted  expert  on  whiskey  declared  a  certain  liquor 
to  be  wliiskey  after  drinking  it.  It  was  held  that  this 
was  not  insufficient  in  law  notwithstanding  the  fact  that 
no  analysis  had  been  made.  Whiskey  being  a  well  known 
liquor  of  high  alcoholic  content.  When  the  word  is 
used  in  the  act  it  has  a  very  definite  and  specific  meaning. 
Singer  v.  United  States,  278  Fed.,  415. 

One  who  has  drunk  whiskey  is  familiar  with  its  taste  and 
smell  may  give  an  opinion  as  to  whether  the  beverage 
sold  and  drunk  was  whiskey  if  it  appears  that  whiskey 
had  been  sold.  It  would  require  no  stretch  of  the  law 
of  judicial  notice  to  conclude  that  w^hiskey  contains  more 
than  one-half  of  one  per  cent  of  alcohol  per  volume. 

Lewinsohn  v.  United  States,  278  Fed.,  421; 

Pennacchio  v.  United  States,  263  Fed.,  66; 

Ruppert  V.  Caffey,  251  U.  S.,  264; 

Purity  Extract  Co.  v.  Lynch,  226  U.  S.,  192; 

Rose  V.  United  States,  274  Fed.,  245; 

Heitler  v.  United  States,  280  Fed.,  703. 

The  same  rule  applies  to  wine,  but  court  should  exercise 
more  care  on  the  question  of  alcoholic  content  of  beer. 

Lewinsohn  v.  United  States,  278  Fed.,  421  at  page  426. 

Contra :  The  opinion  of  federal  prohibition  agents  as  to 
the  alcoholic  contents  of  a  liquid  by  drinking  it,  affords 
no  basis  for  conviction  as  it  was  shown  they  were  not 
chemists  and  attempted  no  analysis,  their  judgment 
being  merely  the  opinion  of  muiualified  witness. 
Berry  et.  al.  v.  United  States,  275  Fed.,  680. 

PENALTIES. 

332.     Collection  of  Penalty  May  Be  Enjoined: — 

Congress  did  nol  intend  the  process  of  di.straint  to  be  u.sed 
for  the  collection  of  penalties  imposed  by  Section  35 
of  the  National  Proiiibition  Act,  therefore,  an  injunetion 
may  issue  notwithstanding  Section  3224  R.  S. 


74  PENALTIES 

Connelly  v.  Tarchner,  272  Fed.,  911; 
Ledbetter  v.  Baily,  274  Fed.,  375; 
Thome  v.  Lynch,  269  Fed.,  995; 
Kausch  V.  Moore,  268  Fed.,  668; 
Accords  V.  Fontenot,  269  Fed.,  447. 


Contra 


Kelly  V.  Lewellyn,  274  Fed.,  108; 
Ketterer  v.  Lederer,  269  Fed.,  153. 


333.  Enforcement  of  Penalties  as  a  Tax: — 

The  Court  will  not  conclude  in  the  absence  of  language  ad- 
mitting of  no  other  construction  that  Congress  intended 
that  penalties  for  crime  should  be  enforced  through  the 
secret  findings  and  summary  action  of  executive  officers. 
The  guaranties  of  due  process  of  law  and  trial  by  jury 
are  not  to  beforgotten  or  disregarded. 

Likpe  V.  Lederer,  (42  S.  Ct.,  551). 

Fontenot  v.  Accrodo,  278  Fed.,  871. 

334.  Imprisonment  Under  Section  29 : — 

A  defendant  is  subject  to  imprisonment  under  Section  29 
of  the  National  Prohibition  Act. 

Dusold  V.  United  States,  270  Fed.,  574. 

Imprisonment  is  not  authorized  under  Title  II,  Section  25- 
29,  National  Prohibition  Act  for  first  offense  of  pos- 
session. 

Torrey  v.  United  States,  278  Fed.,  177. 

335.  Oppressive. — 

Act  Ky.  March  12th,  1920  provides  a  penalty  of  $500  to 
$1000  a  day  for  nonpayment  of  tax  held  oppressive. 

J.  &  A.  Freiborg  Co.  v.  Dawson  et.  al.,  274  Fed.,  420. 

336.  Repeal  Where  Punishment  is  Less.— 

The  rule  of  repeal  by  implication  applies  where  a  later 
statute  imposes  a  less  punishment  than  a  former  statue 

for  the  same  offense. 

United  States  v.  Stafoff,  268  Fed.,  41; 
United  States  v.  Puhac,  268  Fed.,  392. 

337.  Restraining  Revenv.e  Officers  from  Collecting  Tax:— 

On  the  question  of  the  right  of  the  revenue  department  to 
collect  a  tax  for  manufacturing,  etc.,  intoxicating  liquor 
in  addition  to  penalty  exacted  if  defendant  is  found 
guilty  of  violating  the  National  Prohibition  Act,  see : 
Likpe  V.  Lederer,    (42   S.  Ct.,  551). 


PENALTIES— PERMITS  75 

338.  Tax  and  penalty  Distinguished: — 

Although  a  penalty  may  be  designated  as  a  tax  this  would 
not  prevent  an  injunetion  to  restrain  the  assessment  or 
collection  of  the  "tax"  as  revised  statute  3224  wouUl 
not  apply. 

Likpe  V.  Lederer,   (42   S.  Ct..  551). 

PERMITS. 

339.  Burden  on  Defendant  to  Show  Permit : — 
Government  does  not  have  to  prove  in  a  prosecution  for 

transportation  want  of  permit,  unless  defendant  intro- 
duced proof  that  tended  to  show  that  transporting  was 
done  under  a  permit. 

United  States  v.  Turner,  266  Fed.,  248. 

340.  Director  Has  no  Power  to  Revoke: — 

Federal  prohibition  director  has  no  autliority  to  revoke, 
permits. 

Bay  Street  Wholesale  Drug  Co.  v.  Potter,  277  Fed., 
529. 

341.  Holding  Liquor  Under  Permit: — 

Where  a  drug  company  has  permit  to  keep  and  sell  intoxi- 
cating liquors  for  lawful  purposes  the  liquors  cannot  be 
seized  under  a  search  warrant  which  has  been  issued  on 
an  affidavit  charging  an  unlawful  sale  on  the  premises. 
In  Re:  Alpern,  280  Fed.,  432. 

Permits  which  are  not  in  compliance  with  the  statutor^^ 
requirements  is  no  protection  to  one  possessing  li(|uor 

unlawfully. 

United  States  v.  Masters,  267  Fed.,  581. 

342.  Necessary  Parties  to  Bill  Reviewing  Acts  of  Commis- 
sioner : — 

Commissioner  of  internal  revenue  and  federal  prohibition 
commissioner  are  necessary  parties  to  a  bill  to  review 
the  action  of  commissioner  in  revoking  permits. 

Bay  Street  Wholesale  Drug   Co.  v.   Potter,   277   Fed.. 
529. 

The  local  prohibition  dii-ector  is  the  only  party  to  i)ro- 
ceedings  commenced  for  the  pur])os('  of  securing  permit 
when  one  has  previously  been  refused. 

Lacks  V.   Mitchell.  Federal    Proliibition    Director,   278 
Fed.,  393. 


76  PERMITS— POSSESSION 

343.  Section  V  and  IX  of  Title  II:— 

Sections  5  and  9  of  Title  II  of  the  act  have  reference  to 
the  commissioner  of  internal  revenue,  regulations  60, 
Section  16,  delegates  this  power  to  the  federal  prohibi- 
tion commissioner. 

Bay  Street  Wholesale  Drug  Co.  v.   Potter,   277   Fed., 
529. 

POLICE  POWER. 

344.  Powers  Not  Delegated: — 

Police  power  has  not  been  delegated  by  the  states  to  the 
federal  government. 

Pell  Bros.  v.  Day,  278  Fed.,  225; 

Prigg  V.  Pennsylvania,  41  U.  S.,  539.    (See  page  625.) 

POSSESSION. 

345.  Burden  on  Defendant: — 

The  burden  of  proof  as  to  possession  being  legal  and  not 
in  violation  of  the  law  is  upon  the  defendant. 
Dillon  V.  United  States,  279  Fed.,  639. 

346.  Circumstantial  Evidences: — 

Intoxicating  liquor  was  stored  in  the  cellar  vault  of  a  hotel, 
the  location,  attending  circumstances  and  character  of 
the  place  raised  the  presumption  that  it  was  kept  there 
in  violation  of  the  act. 

United  States  v.  Masters,  267  Fed.,  581. 

The  unexplained  possession  of  a  large  quantity  of  liquor  in 
course  of  transportation  in  a  state  in  which  it  could  not 
have  been  lawfully  purchased  and  near  to  the  boundary 
line  of  a  state  in  which  such  purchase  was  lawful,  con- 
stitutes evidence  sufficient  to  go  to  the  jury. 

Knowlton  v.  United  States,  269  Fed.,  386; 

Laughter  v.  United  States,  259  Fed.,  94; 

Berryman  v.  United  States,  259  Fed.,  208; 

Lindsey  v.  United  States,  264  Fed.,  94. 

347.  Dwelling  House: — 

Possession  of  intoxicating  liquor  in  a  dwelling  house  by 
one  not  using  the  dwelling  house  for  any  other  purpose 
than  a  dwelling  is  lawful. 

United  States  v.  Crossen,  264  Fed.,  459. 


POSSESSION  77 

If  all  of  a  building  or  the  part  exclusiA'ely  occupied  by  a 
person  is  used  for  dAvelling  purposes  only,  then  posses- 
sion is  not  unlawful  although  other  persons  may  conduct 
store,  saloon  or  shop  in  another  part  of  the  building. 
Rose  V.  United  States,  274  Fed.,  245. 

(See  opinion  page  249.) 
United  States  v.  Crossen,  264  Fed.,  459. 

348.  Evidence  Held  Sufficient: — 

Evidence  held  sufficient  to  convict  of  possession. 
Rose  V.  United  States,  274  Fed.,  245. 

Possession  of  liquor  purchased  in  February,  1919,  and  not 
kept  in  defendant's  dwelling  house  when  act  went  into 
effect  and  not  reported  within  ten  days  thereof  was 
held  to  be  unlawful  possession. 

Fitzaugli  V.   Mitchell,   United    States   Prohibition   Di- 
rector, 277  Fed.,  966. 

349.  Facts  Not  Constituting  "Possession": — 

Section  3,  Title  II,  of  the  National  Prohibition  Act,  which 
provides  that  no  person  shall,  after  the  date  when  the 
eighteenth  amendment  goes  into  effect,  manufacture, 
sell,  barter,  etc.,  deliver,  furnish  or  possess  any  intoxi- 
cating liquor  does  not  apply  to  a  w^arehouse  man  who 
has  leased  a  room  to  an  owner  of  liquor  who  stored  some 
of  it  there.  There  was  no  "possession"  in  the  warehouse 
man  nor  does  he  "deliver"  by  permitting  the  owner  to 
take  it  from  the  warehouse. 

Street  v.  Lincoln  Safe  Deposit  Co.,  254  U.  S.,  8S.    (41 
S.  Ct,  31.) 

350.  Indictment  Held  Sufficient : — 

Indictment  charged  unlawful  possession  of  liquor.    Held 

sufficient. 

United  States  v.  Everson,  280  Fed.,  126. 

351.  Mash: — 

It  was  held  that  the  possession  of  mash  under  the  circum- 
stances in  this  case  did  not  sustain  a  conviction. 
Hunter  v.  United  States,  279  Fed.,  567. 

352.  On  Train  Passing  Through  State : — 

Defendant  was  charged  with  transi)oiting  \\(\nor  into  the 
state  contrary  to  the  Reed  amemlmcnt.     Tlie  only  evi- 


78  POSSESSION 

dence  produced  at  the  trial  showed  that  liquor  was  found 
in  possession  of  a  Pullman  car  porter  and  that  his  run  as 
such  porter  extended  through  the  state.  It  was  held  in- 
sufficient to  warrant  a  conclusion  that  the  liquor  was 
for  points  wtihin  the  state. 

Preyer  v.  United  States,  269  Fed..  381. 

353.  Penalty  for  Possession: — 

Title  II,  Section  3,  National  Prohibition  Act  prescribes  no 
penalty  for  unlawful  possession.     Penalty  for  such  vio- 
lation being  imposed  under  Section  29  of  same  act. 
Page  et.  al.  v.  United  States,  278  Fed.,  41. 

354.  Permits : — 

Permits  which  are  not  in  compliance  with  the  statutory  re- 
quirements is  no  protection  to  one  possessing  liquors 
illegally. 

United  States  v.  Masters,  267  Fed.,  581. 

355.  Possession  as  Distinguished: — 

Possession  of  liquor  in  a  home  for  personal  use  which  is 
permitted  by  the  act  is  a  different  possession  from  that 
which  is  made  prima  facie  evidence  of  intent  to  sell. 
There  is  nothing  in  the  two  provisions,  one  providing 
for  the  possession  in  the  home,  the  other  providing  that 
possession  of  liquor  shall  be  prima  facie  evidence  that 
it  is  being  kept  for  the  purpose  of  being  sold,  which  au- 
thorizes possession  outside  of  the  home  for  personal  use. 
Street  v.  Lincoln  Safe  Deposit  Co.,  267  Fed.,  706. 

356.  Possession  Not  an  Offense : — 

Possession  of  liquor  alone  does  not  constitute  an  offense. 
United  States  v.  DoAvling,  278  Fed.,  630; 
United  States  v.  Jin  Fuey  Moy,  241  U.  S.,  394. 

357.  Possession  Prior  to  Sale : — 

Defendant  was  charged  with  carrying  on  business  as  a 
retail  liquor  dealer  illegally.  Witnesses  testified  that 
they  had  made  purchases  from  the  defendant  of  intoxi- 
cating liquors.  It  was  held  competent  to  show  posses- 
sion of  liquor  prior  to  such  sales. 

Hunter  v.  United  States,  264  Fed.,  831. 


POSSESSION— POWERS  OF  CONGRESS  79 

558.     Power  of  State  to  Prohibit:— 

The  state  -whicli  has  enacted  prohibitory  hiw  may  forbid 
the  mere  possession  of  liquor  within  its  border. 
Crane  v.  Campbell,  245  U.  S.,  304; 
Barbour  v.  State  of  Georgia,  (39  S.  Ct.,  316.) 

359.  Section  25,  Title  II,  Does  Not  Refer  to  Lawfid  Posses- 
sion : — 

Title  II,  Section  25,  of  the  National  Prohibition  Act  which 
makes  it  unlawful  to  possess  liquors  applies  only  to 
liquor  to  be  used  in  violating  the  act  and  does  not  refer 
to  lawful  possession. 

Street  v.  Lincoln  Safe  Deposit  Co.,  254  U.  S.,  88.    (41 
S.  Ct.,  31.) 

360.  Warehouse  :— 

The  fact  that  possession  of  liquor  is  permitted  in  homes 
for  personal  use  does  not  in  any  way  recognize  lawful 
possession  outside  of  home  by  those  not  having  permits, 
so  that  an  owner  of  liquor  for  personal  use  might  keep 
it  in  a  storage  warehouse. 

Street  v.  Lincoln  Safe  Deposit  Co.,  267  Fed.,  706. 

POWERS  OF  CONGRESS. 

361.  No  Intention  of  Volstead  Act  to  Confiscate: — 

Title  II  of  the  Volstead  Act  was  passed  under  a  grant  of 
power  to  enforce  the  first  section  of  the  eighteenth 
amendment  to  the  Constitution  of  the  United  States, 
which  prohibits  the  manufacture,  sale  and  ti-ansporta- 
tion  of  intoxicating  li(|uor  for  beverage  purposes,  but 
does  not  indicate  any  purpose  to  confiscate  li(|uor  law- 
fully owned  at  tlie  time  the  amendment  sliouhl  become 
effective  and  whicli  the  owner  intended  to  use  in  a  law- 
ful manner. 

Street  v.  Lincoln  Safe  Deposit  Co.,  254  U.  S.,  88.     (41 
S.  Ct.,  31.) 

362.  Power  to  Execute: — 

Congress  has  ])OW('r  to  ))i()vide  means  for  carrying  into 
effect  a  constitutional  provision. 

Page  et.  al.  v.  United  States,  278  Fed.,  41; 
Rose  V.  United  States,  274  Fed.,  245. 


80  POWERS   OF   CONGRESS— PRESUMPTION 

363.  Prohibition  of  Beer  no  Abuse  of  Power: — 

Congress  did  not  abuse  the  power  to  enforce  prohibition 
by  enacting  Willis-Campbell  Act,  which  prohibited  the 
use  of  beer  as  a  medicine. 

Piel  Bros.  v.  Day,  278  Fed.,  225; 

Falstaff  Corporation  v.  Allen,  278  Fed.,  643. 

364.  Right  to  Prohibit  Unreasonable  Searches : — 

Congress  has  the  authority  to  pass  an  act  prohibiting 
searches  which  are  unreasonable. 

United  States  v.  Bateman,  278  Fed.,  231. 

PRESUMPTION. 

365.  A  Natural  Presumption: — 

It  is  presumed  when  one  orders  whiskey  that  he  gets  what 
he  orders. 

Lewinsohn  v.  United  States,  278  Fed.,  421, 

366.  Evidence  Before  Grand  Jury  Presumed  Proper: — 

There  is  a  presumption  which,  however,  may  be  overcome, 
that  legal  and  proper  evidence  was  presented  before 
the  grand  jury  for  their  consideration. 

United  States  v.  Coyle,  229  Fed.,  256. 

367.  Failure  to  Call  Material  Witness : — 

If  a  party  fails  to  call  witness  who  is  familiar  with  the 
facts  it  is  presumed  his  failure  to  do  so  was  because  the 
evidence  of  the  witness  would  be  adverse  to  his  interests. 
United  States  v.  Hill,  217  Fed.,  841. 

368.  Ignorance  of  the  Law: — 

Although  knowledge  of  the  law  is  presumed,  this  does  not 
necessarily  apply  to  repealed  or  void  statutes. 

King  Tonopah  Mining  Co.  v.  Lynch,  232  Fed.,  485. 

369.  Indictment : — 

Indictment  no  evidence  of  guilt. 

United  States  v.  Richards,  149  Fed.,  443. 

370.  Innocence : — 

Defendant  is  presumed  to  be  innocent  until  proven  guilty 
beyond  a  reasonable  doubt. 

Wright  V.  United  States,  227  Fed.,  855; 
Shepherd  v.  United  States,  236  Fed.,  73. 
Wolf  V.  United  States,  238  Fed.,  902. 


PRESUMPTION— REGULATIONS  81 

371.  Presumption  Upon  Presumption: — 

A  presumption  cannot  be  based  upon  another  presumption. 
Smith  V.  Pennsylvania  R.  Co.,  239  Fed.,  103. 

A  presumption  of  one  fact  from  evidence  of  another  does 
not  constitute  a  denial  of  due  process  of  law  or  a  denial 
of  equal  protection  of  law  if  it  appears  that  there  was 
some  casual  connection  between  the  fact  proved  and  the 
ultimate  fact  presumed,  and  if  the  inference  of  one  fact 
from  proof  of  another  shall  not  be  so  unreasonable  as  to 
be  a  purely  arbitrary  mandate. 

Charlie  Toy  v.  United  tSates,  266  Fed.  at  page  329. 

372.  Suppression  of  Evidence: — 

If  evidence  is  suppressed  it  is  presumed  party  suppress- 
ing same  had  his  own  interests  in  mind  in  so  doing,  and 
that  such  evidence  if  submitted  would  be  adverse  to  the 
party  suppressing  it. 

Backus  V.  Owe  Sam  Goon,  235  Fed.,  847. 

PURCHASER. 

373.  Act  as  Effecting  Purchaser: — 

It  is  a  crime  to  sell  liquor  in  violation  of  the  act,  but  pur- 
chaser commits  no  offense  unless  perhaps  it  would  be  for 
a  conspiracy  to  violate  the  law. 

Singer  v.  United  States,  278  Fed.,  419. 

374.  Undisclosed  Intent: — 

There  is  no  violation  of  the  act  where  defendant  made  a 
lawful  purchase   of  liquor  even  though  it  was  shown 
afterwards  that  there  was  an  undisclosed  intent  to  trans- 
port it  to  another  state  in  violation  of  the  act. 
Collins  V.  United  States,  263  Fed.,  657. 

REGULATIONS. 

375.  As  to  Powers  Given  in  Act  to  Make  Regulations: — 

Nothing  is  better  settled  than  that  in  tlie  construction  of 

a  law  its  meaning  must  first  be  sought  in  the  language 

employed,  if  that  be  plain  it  is  the  duty  of  the  court  to 

enforce  the  law  as  written,  provided  it  be  within  the 

constitutional  authority  of  tlie  legislative  body  Avhich 

passed  it. 

United  States  v.  Standard  Brewery  Co.,  251  U.  S.,  217; 

Lake  County  v.  Rollins,  130  U.  S.,  662-670-671; 


82  REGULATIONS— REMOVAL   OF  LIQUOR 

Bate  Refrigerator  Co.  v.  Sulzberger,  157  U.  S..  1-33, 
United  States  v.  Bank,  234  U.  S.,  245-258; 
Caminetti  v.  United  States,  242  U.  S.,  470-485; 
United  States  v.  George,  228  U.   S.,  14-22; 
Waite  V.  Macy,  246  U.  S.  606-6-8-609. 

376.  By  Commissioner  of  Internal  Revenue: — 

Regulations  by  the  commissioner  of  internal  revenue  under 
the  National  Prohibition  Act  held  invalid. 

Oertel  Co.  v.  Gregory,  District  Attorney,  et  al.,  270 
Fed.,  789. 

377.  Regulations  Not  to  Enlarge  Measure  of  Act: — 

Internal  revenue  officers  have  no  authority  under  the  act 
to  determine  the  question  as  to  the  amount  of  alcoholic 
content  considered  to  be  intoxicating.  While  entitled 
to  respect,  decisions  of  the  internal  revenue  department 
cannot  enlarge  the  meaning  of  the  statute  enacted  by 
Congress.  Administrative  rules  cannot  add  to  the  terms 
of  an  act  of  congress  and  make  conduct  criminal  which 
such  laws  leave  untouched. 

United  States  v.  Standard  Brewing  Co.,  251  U.  S.,  210. 

(40  S.  Ct,  139); 

Waite  V.  Macy,  246  U.  S.,  606.    (38  S.  Ct.,  395) ; 

United  States  v.  George,  228  U.  S.,  14,  25.  (33  S.  Ct., 
412); 

United  States  v.  United  Vende  Cooper  Co.,  196  U.  S., 
207,  215.     (25  S.  Ct,  222). 

REMOVAL  OF  LIQUOR. 

378.  Removal  of   Liquor  from   Bonded  and  Private   Ware- 
houses : — 

Liquor  cannot  be  removed  from  bonded  warehouse  for 
beverage  purposes.  This  does  not  apply  to  owner  hav- 
ing liquor  in  private  warehouse. 

Lacks  V.   Mitchell,  Federal  Prohibition  Director,   278 

Fed.,  3931; 

Cornell  v.  Moore,  267  Fed.,  456. 

379.  Removal  of  Liquor  from  Warehouse  Without  Payment 
of  Tax:— 

Failure  to  pay  the  tax  on  the  liquor  before  removing  it 
from  the  bonded  warehouse  or  removing  it  during  the 
absence  of  the  storekeeper  or  without  his  knowledge, 


REMOVAL   OF   LIQUOR— REPEAL  83 

which  are  denounced  by  the  earlier  act  are  a  different 
class  of  offenses  from  those  of  transporting  liquor  Avith- 
out  a  permit  or  without  complying  with  the  other  re- 
quirements of  the  enforcement  act  relative  to  transpor- 
tation and  a  conviction  or  acquittal  of  any  or  all  of  one 
class  would  not  exempt  the  defendant  from  prosecution 
or  conviction  of  any  or  all  of  the  other  class. 
United  States  v.  Fredericks,  273  Fed.,  188. 

REPEAL   OF   FORMER   STATUTES. 

380.  Alaska  Law: — 

The  "Alaska  bone  dry  law"  act  of  February  1-ith,  1917, 
is  not  repealed  by  the  National  Prohibition  Act. 
Abbate  v.  United  States,  270  Fed.,  735. 

381.  General  Rule:— 

The  general  rule  for  the  construction  of  statutes  is  that, 
when  a  later  statute  is  enacted  inconsistent  with  a  pre- 
ceding statute  and  covering  the  entire  ground  of  the 
subject  matter,  it  supersedes  and  impliedly  repeals  the 
preceding  statute.  Especially  is  this  the  case  when  the 
later  statute  imposes  penalties  of  less  severity  for  the 
same  offenses. 

United  States  v.  Windham,  264  Fed.,  376. 

Before  a  statute  can  be  repealed  by  implication  it  must 
be  impossible  to  execute  both  laws. 

Reo  Atlanta  Co.  v.  Stearns,  279  Fed.,  422. 

382.  Not  Repealed  if  Consistent : — 

The  Volstead  Act,  Title  II,  paragraph  35,  providing  that 
statutory  provisions  of  the  act  not  inconsistent  with  it 
are  not  repealed  is  but  declaratory  of  tlie  general  law 
concerning  repeals. 

United  States  v.  Stafoff,  268  Fed.,  417. 

383.  Not  Subject  to  Tax  and  Fine  Both:— 

One  who  lias  been  ('oiivictcd  and  fined  for  the  sale  of 
liquor  under  the  National  Prohibition  Act  cannot  also 
be  subjected  to  penalties  for  failure  lo  p;>y  a  lax  under 
the  internal  revenue  laws. 

Ravitz  V,  Hamilton,  272  Fed.,  721; 

Reed  v.  Thurmond,  269  Fed.,  252; 


84  REPEAL  OF  FORMER  STATUTES 

Farley  v.  United  States,  269  Fed.,  721; 
United  States  v.  Yuginni,  266  Fed.,  746; 
Thome  v.  Lynch,  269  Fed.,  995; 
Kusch  V.  Moore,  268  Fed.,  668; 
Accardo  v.  Fontenot,  269  Fed.,  447; 
Ketchum  v.  United  States,  270  Fed.,  416; 
Violette  v.  Walsh,  272  Fed.,  1014. 

384.  Repeal  and  Suspension  Distingfuished : — 

The  repeal  and  the  suspension  of  statutes  are  distinct 
matters.  The  suspension  of  a  statute  is  limited  in  time, 
and  is  not  a  repeal,  which  is  unlimited  in  time.  The 
suspension  of  a  statute,  like  its  repeal,  may  be  expressed, 
as  when  declared  in  direct  terms,  or  implied,  when  it  is 
inferred  from  subsequent  repugnant  legislation.  But 
suspension  and  repeal  alike,  when  not  expressed,  but 
only  implied,  must  be  inferred  from  necessity.  There 
must  be  such  a  conflict  between  the  old  and  the  new 
statutes  that  the  two  cannot  stand  together.  The  inten- 
tion to  suspend  or  repeal  will  not  be  presumed  unless 
the  inconsistency  is  unavoidable  and  only  to  the  extent 
of  the  repugnance. 

Maresca  et.  al.  v.  United  States,  277  Fed.,  727. 

Prohibition  Act  repealed  Revised  Statute  3082  as  applied 
to  intoxicating  liquor. 

United  States  v.  Bowling,  278  Fed.,  630. 

385.  Revenue  Laws  Not  Repealed: — 

The  National  Proliibition  Act  did  not  impliedly  repeal 
the  internal  revenue  laws  as  relating  to  distilling 
liquors. 

Howard  v.  United  States,  271  Fed.,  301. 

386.  Rev.  Stat.  3258,  3279,  3281  :— 

Eev.  Stat.  3258,  3279,  3281  (Comp.  St.  5994,  6019,  6021) 
which  were  enacted  for  the  purpose  of  collecting  inter- 
nal revenue  on  the  manufacture  of  intoxicating  liquor 
and  imposing  fines  for  transportation  where  the  tax  had 
not  been  paid  were  impliedly  repealed  by  the  prohibi- 
tion act  of  October  28th,  1919. 

United  States  v.  Windham,  264  Fed.,  376. 

Prohibition  act  of  October  28th,  1919,  provides  a  com- 
plete plan  for  the  regulation  of  alcohol  and  its  manu- 


REPEAL  OF  FORMER  STATUTES  85 

facture,  consequenth^  Rev.  Stat.  3258,  3279,  3281  (Comp. 
St.  5994,  6019,  6021)  cannot  be  construed  as  continuing 
in  force  as  to  alcohol  manufactured  and  transported  for 
industrial  purposes. 

United  States  v.  Windham,  264  Fed.,  376. 

Rev.  Stat.  3258,  3282  repealed  by  Volstead  Act. 
United  States  v.  Stafoff,  268  Fed.,  417. 

Rev.  Stat.  3258  (Comp.  St.  5994)  which  fixes  penalty  for 
possession  of  unregistered  stills,  and  section  3882,  which 
provides  a  penalty  for  making  liquor  in  any  other  place 
than  an  authorized  distillery,  is  not  repealed  by  the 
Volstead  Act. 

United  States  v.  DeLarge,  269  Fed.,  820. 
The  puni.shment  is  greater  under  section  3258  and  3282, 
Rev.  Stat.,  than  is  prescribed  in  the  Volstead  Act,  but 
it  is  not  a  punishment  for  the  same  offense  because  the 
mere  unlawful  possession  is  punished  under  the  Vol- 
stead Act,  while  there  must  be  a  distilling  apparatus 
set  up  and  also  unregistered  or  a  mash,  wort,  or  wash 
fit  for  distillation,  and  also  on  premises  other  than  an 
authorized  distillery  to  constitute  an  offense  under  the 
sections  of  the  Revised  Statutes  cited.  Separate  acts, 
though  part  of  a  continuous  transaction,  may  be  made 
separate  crimes  by  the  law  making  poAver,  as  in  the  case 
of  one  who  unlawfully  breaks  and  enters  a  building 
with  intent  to  steal  and  thereupon  does  steal  while  so 
within  the  building. 

Morgan  v.  Devine,  237  U.  S.,  632,  638,  640;  35  Sup.  Ct., 
712,  59  L.  Ed.,  1153; 

Ebeling  v.  Morgan,  237  U.  S.,  625,  630;    35  Sup.  Ct, 

719,  59  L.  Ed.,  1151; 

Morris  v.  United  States,  229  Fed.,  516,  521,  143  C.  C. 
A.,  584; 

Morgan  v.  Sylvester,  231  Fed.,  886,  888,  146  C.  C.  A., 
189. 
Revised  Stat.  3296  is  not  repealed  by  the  Nalioiial  Prolii- 
bition  Act. 

United  Slates  v.  Turnerm.  266  Fed.,  248. 
The  Volstead  Ad   ('nil)i-a(M's  the  entire  subject    inafler  of 
section  3296,  wliidi   iiiiplicdly  repeals  lliat  seelion. 

Reed  v.  Thurmond,  2G9  Fed.,  252; 

United  States  v.  Windham,  264  Fed.,  276; 

United  States  v.  Yuginni,  266  Fed.,  746. 


86  REPEAL  OF  FORMER  STATUTES 

387.    Sections  of  Rev.  Stat.  Repealed  and  Not  Repealed  by 

Act:— 

Sections  3257,  3259,  3281,  3282,  Rev.  Stat.,  are  repealed. 
United  States  v.  Yuginovich,  256  U.  S.  (41  S.  Ct.,  551). 

Sections  3258,  3281,  3286,  Rev.  Stat.,  held  not  repealed. 
Ex  parte  Lawrence,  273  Fed.,  876. 

Sections  3242,  3257,  3258,  3260,  3279,  Rev.  Stat.,  held  not 

repealed. 

Ketclium  v.  United  States,  270  Fed.,  416. 

Sections  923,  3062,  Rev.  Stat.,  held  repealed. 

One  Hudson  Touring  Car,  274  Fed.,  473. 

Section  3244,  Rev.  Stat.,  held  repealed. 
Ravitz  V.  Hamilton,  272  Fed.,  721, 

Sections  3258,  3282,  Rev.  Stat.,  held  repealed. 
United  States  v.  Stafoff,  268  Fed.,  417. 

Sections  3258,  3279,  3281,  Rev.  Stat.,  held  repealed. 
Sanford  v.  United  States,  274  Fed.,  369. 

Section  3450,  Rev.  Stat.,  repealed  in  so  far  as  relates  to 
forfeiture  of  vehicles. 

United  States  v.  One  Haynes  Automobile,  274  Fed., 
926. 

Sections  3258,  3260,  3279,  Rev.  Stat.,  held  not  repealed. 

United  States  v.  Sacein  Rouhana  Farhat,  269  Fed.,  33. 

Section  3296,  Rev.  Stat.,  not  repealed. 

United  States  v.  Freidericks,  273  Fed.,  188. 

Section  3250,  Rev.  Stat.,  held  not  repealed. 

United   States  v.   One   Cole   Aero  Eight   Automobile, 
273  Fed.,  934. 

Section  3251,  Rev.  Stat.,  held  not  repealed. 
Violette  v.  Walsh,  272  Fed.,  1014, 

Sections  3258,  3281,  3282,  Rev.  Stat.,  held  not  repealed. 
United  States  v.  Phillips,  270  Fed.,  281. 

Sections  3258,  3282,  Rev.  Stat.,  held  not  repealed. 
United  States  v.  DeLarge,  269  Fed.,  820. 

Section  3296,  Rev.  Stat.,  held  not  repealed. 
United  States  v.  Turner,  266  Fed.,  248. 


REPEAL   OF  FORMER  STATUTES  87 

388.  Section  15  of  the  Lever  Act:— 

War  Prohibition  At*t  superseded  or  repealed  section  15 
of  Lever  Act.  The  rule  is  well  settled  that  wliere 
statute  prohibited  certain  act  and  imposes  a  penalty  for 
violating  it  and  a  subsequent  act  imposes  a  different 
penalty  for  the  same  offense,  the  latter  act  by  substitu- 
tion repeals  the  former. 

Maresca  et  al.  v.  United  States,  277  Fed.,  727. 

389.  Section  3450  :— 

Section  3450  cannot  be  repealed  by  the  Volstead  Act  be- 
cause it  governs  the  whole  sale  of  articles  taxed  by 
United  States.  Its  application  to  intoxicating  liquors 
alone  can  be  affected  by  the  Volstead  Act. 

Reo  Atlanta  Co.  v.  Stearns,  279  Fed.,  422. 

Section  26  of  the  National  Prohibition  Act,  which  provides 
for  a  forfeiture  of  vehicles  used  in  transporting  liquor 
illegally  relates  only  to  transportation,  consequently 
does  not  repeal  Revised  Statute  3450,  which  provides 
for  a  forfeiture  of  a  vehicle  not  only  used  in  transport- 
ing but  in  concealing  or  depositing  liquors  on  \vhich 
the  tax  has  not  been  paid. 

Reo  Atlanta  Co.  v.  Stearns,  279  Fed.,  422; 

United  States  v.  One  Buick  Roadster,  280  Fed.,  517. 

390.  Special    Statutes    Remain   in    Force    as    Exceptions    to 
General  Statutes: — 

Where  there  are  two  statutes  upon  the  same  subject  the 
earlier  being  special  and  the  latter  general,  the  presump- 
tion is  that  in  the  absence  of  an  expressed  repeal  or  an 
absolute  incompatibility  that  the  special  is  intended  to 
remain  in  force  as  an  exception  to  the  general. 

Abbate  v.  United  States,  270  Fed.,  737; 

Washington  v.  Miller,  235  U.  S.,  422; 

Ex  parte  United  States,  226  U.  S.,  420; 

Petri  V.  Creelman  Lumber  Co.,  199  U.  S.,  487. 

391.  Violation  Before  Act  Became  Effective: — 

Violation  of  i-cvciuk!  laws  before  act  went  into  effect 
would  be  punishable  by  the  law  in  effect  at  time  of 
violation. 

Alexander  v.  Thurmond,  272  Fed.,  174. 


88  REPEAL—  RETURN  OF  PROPERTY 

392.  War  Prohibition  Act  Not  Repealed:— 

War  Prohibition  Act  of  November  21st,  1918,  not  repealed 
by  Volstead  Act  of  October  28th,  1919. 

Maresca  et  al.  v.  United  States,  277  Fed.,  727; 
Vincenta  v.  United  States,  272  Fed.,  114; 
Ford  V.  United  States,  269  Fed.,  609. 

RETURN    OF    PROPERTY. 

393.  Bond  Under  Section  26:— 

By  the  provisions  of  section  26,  National  Prohibition  Act, 
a  vehicle  after  seizure  may  be  instantly  returned  to  the 
owner  upon  execution  by  him  of  a  bond  to  produce  the 
property  at  the  criminal  trial. 

United  States  v.  Hydes,  267  Fed.,  at  page  471; 

United  States  v.  Graham,  267  Fed.,  472. 

394.  Equity  Will  Not  Aid  Return:— 

Liquor  cannot  be  taken  from  bonded  warehouse  by  aid  of 
equity. 

Fitzaugh  v.   Mitchell,  U.  S.  Prohibition  Director,  277 
Fed.,  966. 

395.  Failure  to  Allege  Ownership: — 

Where  property  was  seized  without  a  search  warrant  it 
will  not  be  returned  where  claimant  fails  to  allege 
ownership. 

O'Connor  v.  Potter  et  al.,  276  Fed.,  32. 

396.  Liquor  Not  Returned : — 

Illicit  liquor  seized  under  a  search  warrant  that  was 
invalid  need  not  be  returned. 

United  States  v.  Alexander,  278  Fed.,  308. 

397.  No  Power  to  Order  Return  in  Summary  Proceedings: — 

The  court  has  no  power  in  summary  proceedings  to  order 
the  return  of  an  automobile  seized  while  being  used 
for  transportation  of  liquor.  Prohibition  agents  not 
being  officers  of  the  court,  they  cannot  be  ordered  by 
the  court  in  these  proceedings  to  return  vehicle. 
Lewis  V.  McCarthy,  274  Fed.,  496. 

398.  No  Right  of  Property  :— 

No   one   can   have   any  right   of  property   in   contraband 
liquor  or  any  right  to  transport  it. 
Elrod  V.  Moss,  278  Fed.,  129. 


RETURN  OF   PROPERTY  89 

399.  Power  of  Commissioner: — 

Commissioner  cannot  order  return  of  liquor  seized. 
Biliganis  v.  Mitchell,  279  Fed.,  131; 
In  Re:  Alpern,  280  Fed.,  432. 

400.  Return  of  Still  :— 

Owner  held  not  entitled  to  return  of  still. 
In  Re:  Mobile,  278  Fed.,  949. 

Petitioner  held  to  have  no  right  to  return  of  still  found 
on  premises,  even  though  it  was  not  mentioned  in  the 
search  warrant. 

United  States  v.  Camarota,  278  Fed.,  388. 

401.  Rights  of  Conditional  Vendor  or  Mortgagee: — 

A  conditional  vendor  or  a  mortgagee  Avho  alloAvs  a  vehicle 
to  be  used  for  unlawful  purposes  with  his  knowledge 
or  who  gives  his  consent  to  illicit  transportation  shall 
forfeit  all  interest  in  or  his  lien  upon  the  vehicle. 
United  States  v.  Sylvester,  273  Fed.,  at  page  257. 

A  bona  fide  vendor  or  mortgagee,  without  having  any 
notice  that  vehicle  was  being  used  or  was  to  be  used 
for  illegal  purposes  shall  be  protected  to  the  amount 
of  his  bona  fide  lien  in  so  far  as  possible. 

United  States  v.  Sylvester,  273  Fed.,  at  page  257. 

402.  Rights  of  Lienor: — 

If  a  lienor  has  no  knowledge  as  to  the  purpose  for  which 
vehicle  Avas  being  used  upon  which  he  has  his  lien  and 
there  are  no  facts  which  would  warrant  his  suspicions 
being  aroused,  then  in  that  event,  in  case  of  seizure  the 
vehicle  shall  be  sold  at  public  auction  and  after  the 
costs  as  provided  by  law  have  been  paid,  the  United 
States  marslial  sliall  tlicn  pay,  if  possible,  the  amount 
of  the  bona  fide  lien  in  full  to  the  proper  person  and 
the  balance,  if  any,  shall  be  turned  into  the  treasury  of 
the  United  States.  If,  however,  the  lienor  had  knowl- 
edge of  the  illegal  use  of  the  vehicle  or  could  be  charged 
with  such  knowledge,  llicn  the  proceeds  of  the  sale  of 
said  vehicle  shall  be  turned  into  the  treasury  of  the 
United  States  after  the  payment   of  such  costs  as  are 

provided  by  law. 

United  States  v.  Sylvester,  273  Fed.,  at  page  257. 


90  RETURN  OF   PROPERTY 

Cases  may  arise  where  the  application  of  this  rule  would 
result  in  realizing  an  insufficient  amount  at  the  sale  to 
pay  the  full  amount  of  the  bona  fide  lien,  but  where 
a  substantial  amount  has  already  been  paid,  as  here, 
on  a  new  truck,  undoubtedly  the  full  amount  of  the 
balance  due,  plus  the  costs,  will  be  realized  so  that  the 
lienor  will  be  fully  protected.  Where,  however,  the 
amount  paid  by  the  purchaser  is  small  in  proportion  to 
the  purchased  price,  so  that  a  large  amount  will  have 
to  be  realized  by  the  United  States  marshal  at  the  sale 
and  where  the  highest  bid  is  insufficient  to  meet  the 
costs  and  the  amount  of  the  bona  fide  lien,  United  States 
marshal  shall  then  abandon  the  sale,  report  the  facts  to 
the  court  for  further  instructions.  In  such  event  a 
further  hearing  will  be  had  before  the  court  to  deter- 
mine then  whether  the  lienor  has  shown  good  cause  why 
the  vehicle  should  not  be  sold. 

United  States  v.  Sylvester,  273  Fed.,  at  page  257, 

403.  Rights  of  Owner  Having  Loaned  Vehicle: — 

The  owner  of  a  vehicle  who  loaned  it  to  another,  who  in 
turn  transports  intoxicating  liquor  therein  is  entitled 
to  a  retnrn  of  the  vehicle,  where  he  has  no  knowledge 
of  the  purpose  of  the  borrower  and  no  facts  are  shown 
which  should  have  aroused  his  suspicion. 

United  States  v.  Sylvester,  273  Fed.,  at  page  257. 

404.  Sale,  Only  After  Conviction: — 

If  the  person  is  convicted,  and  only  then  may  the  court 
destroy  the  liquor  and  order  the  sale  of  the  vehicle,  at 
the  same  time  hearing  any  claimant  or  lienor  as  to  his 
or  her  rights  therein. 

Reo  Atlanta  Co.  v.  Stearns,  279  Fed.,  422,  at  page  424. 

405.  SeizTire  Without  Process: — 

The  auto  and  whiskey,  by  virtue  of  the  National  Prohibi- 
tion Act,  were  forfeited  and  thereby  transferred  to  the 
United  States  the  moment  defendant  embarked  upon 
the  unlawful  transportation.  The  United  States  was 
then  vested  with  the  right  of  property  and  possession. 
Even  as  any  other  owner  of  property  in  like  circum- 
stances at  common  law.  United  States  without  process 


RETURN  OF  PROPERTY— SALE  91 

could  recover  possession  by  force  and  however,  if  at 
all  irregularly  the  officers  proceeded,  the  defendants 
have  no  right  to  the  return  of  the  property  nor  to  object 
to  its  use  in  evidence  whatever  other  if  any  right  or 
remedj'  they  may  have. 

United  States  v.  Fenton,  268  Fed.,  221. 

406.  Use  of  Vehicle  Without  Owner's  Knowledge: — 
Where  oAvnership  and  want  of  knowledge  on  the  part  of 

the  vehicle  owner  as  to  the  purpose  for  which  the 
vehicle  was  employed  it  was  held  that  without  any  other 
attending  circumstances  this  was  sufficient  to  warrant 
the  court  to  order  its  return  to  the  owner. 

United  States  v.  Brocliley.  266  Fed.,  1001. 

Contra:  Lewis  v.  McCarthy,  274  Fed.,  496. 

SALE. 

407.  Indictment  Charging  Sale  Held  Good: — 
Indictment  charged  sale  of  intoxicating  liquor  for  bev- 
erage purposes  held  sufficient. 

Heitler  v.  United  States,  280  Fed.,  703. 

408.  Inference  from  Single  Sale: — 

There  can  be  an  almost  irrefutable  conclusion  drawn  from 
a  single  sale  of  intoxicating  liquor,  provided  the  facts 
surrounding  such  sale  warrant  the  inference  that  it  was 
one  of  the  ordinary  and  usual  incidents  of  the  business 
then  being  conducted. 

Lewinsohn  v.  United  States,  278  Fed.,  421. 

409.  Ignorance  as  to  Alcoholic  Content  No  Defense: — 

Ignorance  of  the  fact  that  products  sold  contained  more 
than  the  lawful  percentage  of  alcohol  is  not  a  defense 
as  intent  is  not  an  element  of  illegal  sale. 
United  States  v.  Mathie,  274  Fed.,  225. 

410.  Sale  Held  Not  Entrapment: — 

Sale  to  officers  asking  for  cough  syrup  does  not  constitute 

entrapment. 

Farley  v.  United  States,  269  Fed.,  721. 

411.  Sale  to  Agents: — 

Proof  was  limited  to  the  fact  that  sale  was  made  to  gov- 
ernment agents.  This  circumstance  hold  not  to  preclude 
a  conviction. 

Saucedo  v.  United  States,  268  Fed.,  830. 


92  SALE— SEARCH  AND  SEIZURE 

412.  Title  II,  Sections  3,  6,  11  :— 

Title  II,  sections  3,  6  and  11,  of  the  National  Prohibition 
Act,  does  not  authorize  a  jobber  to  withdraw  whiskey 
from  bond  for  sale  to  a  druggist.  Act  applies  only 
to  manufacturers  and  wholesale  druggists. 

Small    Grain    Distilling    and    Drug    Co.    v.    Hamilton, 
Collector  of  Internal  Revenue,  et  al.,  276  Fed.,  544. 

SEARCH    AND    SEIZURE. 

413.  Amend  in  Term: — 

The  court  has  authority  to  amend  or  vacate  order  during 
the  term  order  was  entered,  providing  for  the  sale  of 
an  automobile  seized  for  transporting  liquor. 
United  States  v.  Brockley,  266  Fed.,  1001. 

414.  Chattel  Mortgage  on  Car  Seized:— 

Where    an   automobile   was    seized   under   Volstead   Act, 
October  28th,  1919,  one  holding  a  chattel  mortgage  on 
it  must  establish  his  claim  by  competent  evidence. 
United  States  v.  Masters,  264  Fed.,  250. 

Where  a  chattel  mortgage  on  an  automobile  seized  by 
virtue  of  the  Volstead  Act  is  relied  upon  to  show  a  lien 
on  said  property  seized  it  must  bear  internal  revenue 
stamps  as  required  by  act  of  February  24th,  1919,  to  be 
admissible  as  evidence  in  the  federal  court. 
United  States  v.  Masters,  264  Fed.,  250. 

415.  Commissioner  No  Authority  to  Return  Property:— 

Title  II,  section  25,  of  the  National  Prohibition  Act,  does 
not  give  commissioner  authority  to  return  goods  seized 
thereunder,  as  the  act  provides  that  property  seized 
shall  be  subject  to  such  disposition  as  the  court  may 
make  thereof. 

Francis  Drug  Co.  v.  Potter,  275  Fed.,  615. 

416.  Competency  or  Incompetency  of  Evidence  Seized: — 

To  settle  the  question  as  to  what  testimony  is  competent 
or  incompetent  in  ordering  the  return  of  papers  illegally 
seized,  some  reference  will  be  necessary  to  a  master  who 
will  make  a  record  of  such  character  so  that  the  evi- 
dence obtained  by  the  improper  seizure  may  be  iden- 
tified.    No  such  evidence  or  testimony  may  be   given 


SEARCH  AND  SEIZURE  93 

unless  the  respondents  show  before  the  master  that  they 
have  independent  proof  not  derived  from  information 
contained  in  the  papers.  The  expenses  of  this  reference 
will  be  borne  by  the  prosecution  tlirou<i'li  whose  wrong 
the  difficulty  arose. 

United  States  v.  Kraus,  270  Fed.,  578. 

The  evidence  obtained  upon  an  unwarranted  search  can 
not  be  used  either  to  secure  the  owaier's  conviction  or 
to  forfeit  his  property  if  petition  for  its  return  is  pre- 
sented to  the  court  before  trial. 

United  States  v.  Bush,  269  Fed.,  455; 

United  States  v.  Slusser,  270  Fed.,  818; 

Boyd  V.  United  States,  116  U.  S.,  634; 

United  States  v.  Brasley,  268  Fed.,  59. 

The  fact  that  city  officers  assisted  in  the  search  and  seizure 
does  not  alter  result  if  federal  officers  participated  in 
and  took  charge  of  the  property  seized. 

United  States  v.  Slusser,  270  Fed.,  818; 
Flagg  V.  United  States,  233  Fed.,  481; 


Contra 


United  States  v.  O'Dowd,  273  Fed.,  600; 
Youngblood  v.  United  States,  266  Fed.,  795. 


A  seizure  of  wine  and  liquor  was  made  by  police  officers 
of  a  city  and  not  by  prohibition  agents  of  the  United 
States,  the  police  officers  having  been  called  because  of 
a  peace  disturbance.  The  testimony  was  held  to  be 
admissible  as  well  as  any  whiskey  or  liquor  taken  by 
them  without  a  search  Avarrant,  as  it  was  held  there  liad 
been  no  violation  of  defendant's  right  under  constitu- 
tional amendment  four. 

Herine  v.  United  States,  276  Fed.,  806. 

Prohibition  enforcement  agents  went  into  a  hotel  and  bar 
where  they  found  three  persons  standing  before  the  bar 
drinking  whiskey.  The  whiskey  was  seized  by  the 
agents.  They  then  asked  permission  to  search  the  house 
which  was  granted  by  the  defendant.  As  a  result  of 
this  search  there  was  found  several  gallons  of  intoxi- 
cating liquor.  It  was  held  that  this  evidence  was  admis- 
sible and  that  the  seizure  did  not  violate  the  constitu- 
tional rights  of  the  defendant. 

Dillon  V.  United  States,  279  Fed.,  639; 


94  SEARCH  AND  SEIZURE 

Contra  see : 

Amos  V.  United  States,  255  U.  S.,  313. 
Golds  V.  United  States,  255  U.  S.,  298. 

Papers  may  be  used  in  evidence  even  if  seized  illegally  if 
government  had  nothing  to  do  with  illegal  seizure. 
Burdeau  v.  McDonald,  256  U.  S.,  (41  S.  Ct,  574). 

For  rule  on  improper  seizure  as  effecting  the  competency 
and  incompetency  of  evidence,  see 

Gouled  V.  United  States,  255  U.  S.,  298; 
Haywood  v.  United  States,  268  Fed.,  795; 
St.  John  V.  United  States,  268  Fed.,  808; 
Weinstein  v.  Attorney  General,  271  Fed.,  673; 
Amos  V.  United  States,  255  U.  S.,  313; 
United  States  v.  Kraus,  270  Fed.,  578; 
United  States  v.  Rykowski,  267  Fed.,  856; 
United  States  v.  Porazzo,  272  Fed.,  276. 

417.  Confiscation  and  Destruction: — 

Constitutional  amendment  number  five  does  not  apply  to 
destruction  of  whiskey  or  other  intoxicating  liquors 
under  the  prohibition  act  of  November  21st,  1918. 
Although  the  whiskey  may  have  value,  it  may  be 
destroyed  without  compensation. 

Hannah  &  Hog  v.  Clyne,  263  Fed.,  599. 

418.  Definition  of  ' '  Boat, "  "  Craft, ' '  Etc.  :— 

"Boat,"  "craft"  and  "watercraft"  has  reference  to  small 
boats  and  crafts.  It  does  not  mean  large  steamers. 
Therefore  a  steamer  of  heavy  tonnage  cannot  be  seized 
under  the  act  where  some  of  the  crew  without  the 
knowledge    of   the    owners    have    illegally   transported 

liquor  thereon. 

The  Saxon,  269  Fed.,  639. 

419.  Essential  Elements  for  Forfeiture: — 

The  forfeiture  of  an  automobile  under  the  twenty-sixth 
section  of  the  Volstead  Act  must  be  in  strict  pursuance 
to  the  terms  thereof.  The  following  elements  are 
essential : 

(1)  That  an  officer  of  the  law  discover  some  person 

in  the  act  of  illegally  transporting  liquor  in  a 
vehicle. 

(2)  The  seizure  of  the  liquor  so  transported  or  pos- 

sessed. 


SEARCH  AND  SEIZURE  95 

(3)  The   seizure   of  the   vehicle   and   arrest   of   the 

person. 

(4)  That  the  officer  proceed  against  the  person  and 

retain  the  vehicle,  unless  redelivered  to  the 
owner,  upon  giving  bond  to  return  it  to  the 
custody  of  the  officer  on  the  day  of  trial  to 
abide  the  judgment  of  the  court. 

(5)  Conviction  of  the  person  and  order  of  sale  of 

the  vehicle. 

(6)  Distribution  of  the  proceeds. 

United  States  v.  Slusser,  270  Fed.,  818; 
United  States  v.  Hydes,  267  Fed.,  471; 
The  Goodhope,  268  Fed.,  694. 

420.  Fourth  Amendment: — 

The  fourth  amendment  to  the  constitution  contains  no 
prohibition  against  arrest,  search  and  seizure  without  a 
warrant,  that  was  left  under  the  common  law.  The 
amendment  provides  not  that  no  arrest,  search  or  seizure 
should  be  made  without  a  warrant,  but  prescribes  that 
there  shall  be  no  unreasonable  search  and  seizure. 
United  States  v.  Snyder,  278  Fed.,  653. 

421.  Garage: — 

The  right  of  the  people  to  be  secure  in  their  houses  and 
effects  against  unreasonable  searches  and  seizures  is  not 
limited  to  dwelling  houses,  but  extends  to  a  garage  used 
personally  and  for  hire. 

United  States  v.  Slusser,  270  Fed.,  818. 

422.  Illegally    Obtained   Information   No    Basis   for   Search 
Warrant : — 

If  information   is  secured   through   the  use  of  an  illegal 
search  warrant  such  information  cannot  afterwards  be 
used  in  the  securing  of  a  second  warrant. 
United  States  v.  Mitchell,  274  Fed.,  128. 

423.  Jurisdictional: — 

The  provision  of  the  National  Prohibition  Act  which  pro- 
vides for  a  forfeiture  of  property  seized  while  in  viola- 
tion of  the  law  is  a  proceeding  in  rem.  The  ]>ro('edure 
is  not  merely  directory  and  cumulative,  but  is  juris- 
dictional. 

United  States  v.  Hydes,  267  Fed.,  470. 


96  SEARCH  AND  SEIZURE 

424.  Knowledge  of  Use  as  Affecting  Owner: — 

Where  it  is  shown  that  vehicle  was  used  unlawfully  by 
another    without    the    knowledge    or    sanction    of    the 
owner  the  court  is  warranted  in  ordering  its  return. 
United  States  v.  Brockley,  266  Fed.,  1001. 

The  rule  might  be  otherAvise  if  the  reputation  of  the  person 
entrusted  with  the  vehicle  or  other  circumstances 
attending  his  occupation  or  employment  would  give  rise 
to  an  inference  that  it  was  to  be  used  for  unlawful 
purposes. 

United  States  v.  Brockley,  266  Fed.,  1002. 

The  court  under  the  National  Prohibition  Act  has  no 
authority  to  return  a  vehicle  to  the  owner  used  in  illegal 
transportation  unless  it  can  be  shown  that  the  owner 
had  no  knowledge  of  its  unlawful  use. 

United  States  v.  Burns,  270  Fed.,  681. 

425.  No  Forfeiture  if  Search  Is  Unlawful: — 

Where  there  is  no  evidence  to  warrant  the  forfeiture  of  an 
automobile  seized  as  the  vehicle  of  unlawful  transporta- 
tion except  that  obtained  upon  an  unwarranted  and 
unlawful  search  and  seizure  the  automobile  cannot  be 
forfeited. 

United  States  v.  Slusser,  270  Fed.,  818. 

426.  One  Illegal  Sale  Did  Not  Warrant  Seizure : — 

Where  a  company  had  a  permit  to  have  liquor  in  its  pos- 
session one  illegal  sale  was  held  insufficient  to  warrant 
the  seizure  of  the  entire  stock  of  liquor,  nor  is  this  view 
affected  by  the  fact  that  proceedings  were  pending 
under  section  9  of  the  act  seeking  to  revoke  the  com- 
pany's permit. 

Francis  Drug  Co.  v.  Potter,  275  Fed.,  615. 

427.  Order  Not  Appealable: — 

An  order  for  the  return  of  liquor  illegally  seized  is  not 
appealable. 

United  States  v.  Marquette,  270  Fed.,  214; 
Coastwise  Lumber  and  Supply  Co.  v.  United  States, 

259  Fed.,  847; 
United  States  v.  Maresca,  266  Fed.,  713; 
Crooker  v.  Knudsen,  232  Fed.,  857. 


SEARCH  AND  SEIZURE  97 

428.  Order  Returning  Papers  Unlawfully  Seized: — 

When  papers  wrongfully  seized  are  ordered  to  be  returned 
the  order  will  provide  that  no  testimony  or  other  evi- 
dence as  fathered  from  such  papers  shall  be  competent 
unless  it  is  slioM^i  that  such  testimony  or  evidence  is 
secured  independently  from  the  papers  or  instruments 
unlawfully  seized. 

United  States  v.  Kraus,  270  Fed.,  578. 

Documents  seized  in  unlawful  searches  must  be  returned 
and  with  them  all  copies  taken  of  them  while  the  docu- 
ments were  being  held  by  the  officers  illegally,  and  in 
addition  the  prosecution  may  not  use  at  the  trial  or  in 
its  preparation  any  information  obtained  from  the 
scrutiny  of  such  documents  illegally  obtained. 

United  States  v.  Kraus,  270  Fed.,  578; 

Weeks  v.  United  States,  232  U.  S.,  383; 

Silverthorne  Lumber  Co.  v.  United  States,  251  U.  S., 
385; 

Flagg  V.  United  States,  233  Fed.,  481; 

Veeder  v.  United  States,  252  Fed.,  414; 

United  States  v.  Mills,  185  Fed.,  318. 

429.  Private  Dwelling: — 

Private    dwelling    occupied    as    such    may    be    lawfully 
searched    under    a    search    warrant    duly    issued    upon 
sufficient  information  supported  by  affidavit. 
United  States  v.  Crossen,  264  Fed.,  461. 

Private  dwelling  is  not  exempt  from  search  if  it  is  being 
used  for  the  unlawful  sale  of  intoxicating  liquor  or  if  it 
is  in  part  used  for  some  business  purpose. 
United  States  v.  Crossen,  264  Fed.,  459. 

Where  a  dwelling  house  is  used  in  part  as  a  saloon  the 

right  to  search  applies  only  to  the  husband  and  not  to 

the  wife,  whose  possession  was  hnvful,  and  it  was  shown 

that  she  had  nothing  to  do  with  conducting  the  saloon. 

United  States  v.  Crossen,  264  Fed.,  459. 

Search  of  private  dwelling  may  be  provided  for  by  state 
laws. 

United  States  v.  Viess,  273  Fed.,  279. 

If  in  the  attending  enforcing  of  the  prohibition  law  a 
search  warrant  is  applied  for  the  first  inquiry  of  the 


98  SEARCH  AND  SEIZURE 

judge  or  commissioner  should  be  as  to  the  character  of 
the  place  to  be  searched.  If  it  be  a  private  dwelling 
then  the  inquiry  should  be  what  evidence  have  you  that 
this  place  is  being  used  for  the  unlawful  sale  of  intoxi- 
cating liquor.  If  the  officer  has  no  such  evidence  he 
should  not  apply  for  the  warrant. 

United  States  v.  Mitchell,  274  Fed.,  128. 

"The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers  and  effects  against  unreasonable  searches 
and  seizures  shall  not  be  violated,  and  no  warrant  shall 
issue  but  upon  probable  cause  supported  by  the  oath  or 
information,  and  particularly  describing  the  place  to  be 
searched,  the  person  and  things  to  be  searched."  Such 
is  the  language  of  the  fourth  amendment.  The  protec- 
tion thus  afforded  can  only  be  insured  by  the  courts. 
Every  case  arising  must,  of  course,  be  determined  upon 
the  facts  of  that  particular  case ;  and  where,  as  here, 
the  records  of  an  invitation  to  enter  which  also  shows 
the  presence  of  shotguns  and  pistols,  I  cannot  disasso- 
ciate the  one  from  the  other. 

As  there  was  no  order  to  either  search  the  premises  or 
seize  the  liquor,  and  as  the  only  justification  pleaded 
is  that  of  "invitation  to  enter  and  consent  to  the 
seizure. ' ' 

Under  the  circumstances  recited  I  am  of  the  opinion  that 
the  motion  for  an  order  for  the  return  of  the  property 
should  be  granted  upon  the  pleadings. 

United  States  v.  Kelih,  272  Fed.,  484. 

430.  Proceeding  to  Determine  Rights: — 

An  officer  seizing  liquors  under  a  search  warrant  must 
cause  appropriate  proceedings  to  be  brought  to  deter- 
mine whether  the  liquor  is  unlawfully  possessed  or  is 
without  property  rights  under  National  Prohibition  Act, 
Title  II,  section  25. 

United  States  v.  Crossen,  264  Fed.,  459. 

431.  Prompt  Trial:— 

The  defendant  was  charged  with  violation  of  the  Reed 
amendment.  At  the  time  of  his  arrest  intoxicating 
liquor  was  seized  and  possession  of  same  was  taken  from 
him.    More  than  a  year  elapsed  after  the  seizure  without 


SEARCH  AND  SEIZURE  99 

an  information  or  indictment  having  been  returned.  It 
was  held  that  the  statute  contemplated  prompt  trial, 
and  in  the  absence  of  formal  charges  being  filed  the 
defendant  was  entitled  to  a  return  of  his  property. 

Dorsey  v.  District  of  Columbia  et  al.,  265  Fed.,  1005. 

432.  Property  Rights: — 

Prior  to  the  eighteenth  amendment  "whiskej^"  was  prop- 
erty and  the  rights  therein  were  as  full  and  complete 
as    property    rights    in    any    other    sort    of    personal 

property. 

Cornell  v.  Moore,  267  Fed.,  456. 

433.  Question  of  Improper  Seizure  One  Within  Discretion  of 
Court : — 

The  question  as  to  whether  improper  seizure  has  been 
made  which  affects  the  admissibility  of  that  seized  as 
evidence  is  a  question  for  determination  by  the  trial 

court. 

Hughes  V.  Falvey,  269  Fed.,  865. 

434.  Reasonable  and  Unreasonable  Searches:— 

The  officers  of  the  government  have  authority  when  they 
hold  a  warrant  to  search,  to  take  a  locked  safe  into  their 
possession  for  such  time  as  may  be  necessary  to  open 
it,  where  the  defendant  locked  the  safe  and  refused  to 
open  same  on  demand. 

United  States  v.  Metzger,  270  Fed.,  291. 

Where  a  party  announced  himself  as  a  prohibition  agent 
and  was  given  permission  to  make  a  search  this  does 
not  waive  defendant's  right  to  constitutional  protection 
from  unreasonable  search. 

United  States  v.  Slusser,  270  Fed.,  818; 

United  States  v.  Marquette,  271  Fed.,  120. 

The  riglit  of  the  people  to  be  secure  in  their  houses  and 
effects  against  unreasonable  searches  is  not  limited  to 
dwelling  houses,  but  extends  to  a   garage,  store,  shop, 
office,  safety  deposit  vault  or  even  to  a  corporation. 
United  State.s  v.  Slusser,  270  F(?d.,  818; 
Silverthorne  Lumber  Co.  v.  United  States,  251  I.  S., 
385. 
An  unlawful  search  cannot  be  jnstificd  by  what  is  found. 
A  search  that  is  unlawful  when  it  begins  is  not  made 


100  SEARCH  AND  SEIZURE 

lawful  when  it  ends  by  the  discovery  and  seizure  of 

liquor. 

United  States  v.  Slusser,  270  Fed.,  818. 

The  entry  without  permission  expressed  or  implied  with- 
out warrant  on  a  mission  of  search  and  seizure  by  pro- 
hibition agents  is  unlawful. 

United  States  v.  Slusser,  270  Fed.,  818. 

The  eighteenth  amendment  must  be  considered  in  deter- 
mining  the    question    as   to    what   is   an   unreasonable 

search. 

United  States  v.  Bateman,  278  Fed.,  231. 

The  prohibition  of  the  fourth  amendment  is  against  all 
unreasonable  searches  and  seizures ;  and  if  for  a  govern- 
ment offi,cer  to  obtain  entrance  to  a  man's  house  or  office 
by  force  or  by  an  illegal  threat  or  show  of  force,  amount- 
ing to  coercion,  and  then  to  search  for  and  seize  his 
private  papers,  would  be  an  unreasonable  and  therefore 
a  prohibited,  search  and  seizure,  as  it  certainly  would 
be,  it  is  impossible  to  successfully  contend  that  a  like 
search  and  seizure  would  be  a  reasonable  one  if  only 
admission  were  obtained  by  stealth  or  by  force  or  coer- 
cion. The  security  and  privacy  of  the  home  or  office  and 
of  the  papers  of  the  owner  would  be  as  much  invaded, 
and  the  search  and  seizure  would  be  as  much  against 
his  will  in  the  one  case  as  in  the  other;  and  it  must 
therefore  be  regarded  as  equally  in  violation  of  his  con- 
stitutional rights. 

Without  discussing  them,  we  cannot  doubt  that  such  de- 
cisions as  there  are  in  conflict  with  this  conclusion  are 
unsound,  and  that,  whether  entrance  to  the  home  or 
office  of  a  person  suspected  of  crime  be  obtained  by  a 
representative  of  any  branch  or  subdivision  of  the 
government  of  the  United  States  by  stealth,  or  through 
social  acquaintance,  or  in  the  guise  of  a  business  call, 
and  whether  the  owner  be  present  or  not  when  he  enters, 
any  search  and  seizure  subsequently  and  secretly  made 
in  his  absence  falls  within  the  scope  of  the  prohibition 
of  the  fourth  amendment. 

Gouled  V.  United  States,  255  U.  S.,  298. 

435.    Return  of  Property: — 

Property  seized  under  an  invalid  search  warrant  must  be 
returned  upon  proper  showing  of  fact. 

United  States  v.  Ray  &  Schultz,  275  Fed.,  104. 


SEARCH  AND  SEIZURE  101 

Mere  evidence  of  sale  does  not  give  tlie  right  to  search  a 
private  dAvelling  without  a  proper  search  warrant  and 
Tinder  such  circumstances  property  seized  must  be 
returned  and  is  not  admissible  in  evidence  against  the 

owner. 

Connelly  v.  United  States,  275  Fed.,  509; 
Boyd  V.  United  States,  116  U.  S.,  616; 
Weeks  v.  United  States,  232  U.  S.,  383. 

Evidence   held   insufficient   to   warrant   return   of   liquor 

seized. 

In  Re:    A  Disposition  of  Certain  Intoxicating  Liquors, 
275  Fed.,  852. 

436.  Right  to  Inspect  Does  Not  Give  Right  to  Seize  :— 
The  right  to  inspect  does  not  give  the  right  to  seize. 

United  States  v.  Kraus,  270  Fed.,  581. 

437.  Sale— Unless  Good  Cause  Is  Shown:— 

National  Prohibition  Act  provides  that  the  court  shall 
unless  good  cause  is  shown  to  the  contrarj^  order  the 
sale  of  property  seized  under  the  act.  It  is  within  the 
judicial  discretion  of  the  court  to  determine  if  good 
cause  is  shown. 

United  States  v.  Brockley,  266  Fed.,  1001. 

438.  Search  While  Under  Arrest: — 

It  is  entirely  proper  to  examine  thoroughly  the  person 
and  effects  of  a  man  in  an  intoxicated  condition  who  is 
under  arrest  because  of  such  condition.  The  right  of  an 
arresting  officer  to  search  a  defendant  under  ordinary 
circumstances  when  a  defendant  is  under  arrest  charged 
with  a  violation  of  the  law  cannot  be  questioned. 

United  States  v.  Murphy,  264  Fed.,  842; 

Weeks  v.  United  States,  232  U.  S.,  383; 

Welsh  V.  United  States,  267  Fed.,  819. 

Whiskey  taken  from  a  person  under  arrest  for  intoxication 
is  not  unreasonable  searches,  consequently  is  admissible 
evidence  against  him. 

United  States  v.  Murphy,  264  Fed.,  842; 

Vouled  V.  United  States,  264  Fed.,  839. 

Where  one  was  arrested  while  in  violation  of  the  Volstead 
Act  agents  had  the  right  to  search  the  person,  having 


102  SEARCH  AND  SEIZURE 

properly  arrested  him.     This  is  a  recognized  incident  of 
an  arrest. 

United  States  v.  Kraus,  260  Fed.,  578; 

Weeks  v.  United  States,  232  U.  S.,  392. 

439.  Steamships  Not  Subject  to  Forfeiture : — 

Large  steamships  not  subject  to  forfeiture  in  sale  nor  are 
the  owners  required  to  give  bond  for  its  release. 
The  Saxon,  269  Fed.,  639. 

440.  To  Determine  Right  of  Seizure: — 

Defendant  filed  a  petition  for  the  return  of  papers  which 
he  claimed  illegally  seized.  The  respondents  answered 
by  stating  that  the  search  and  seizure  was  by  con- 
sent of  the  defendant.  This  is  an  issue  which  gives  the 
parties  right  to  a  trial  and  it  cannot  be  decided  upon 
affidavits.  It  may  be  brought  on  at  the  criminal  term 
on  any  convenient  day  and  be  tried  before  the  presiding 
judge  without  a  jury. 

United  States  v.  Kraus,  270  Fed.,  578. 

441.  Time  of  Seizure: — 

Section  twenty-six  of  Title  Two  of  the  National  Prohibi- 
tion Act  expressly  provides  that  the  vehicle  shall  be 
taken  while  in  the  act  of  illegal  transportation.  If  the 
vehicle  is  not  so  taken  a  seizure  afterwards  would  be 
without  warrant  of  law. 

United  States  v.  Hydes,  267  Fed.,  470. 

One  may  be  convicted  of  illegal  transportation,  yet  the 
vehicle  will  not  be  forfeited  unless  seized  at  the  time. 
The  seizing  officer  is  to  have  the  vehicle  in  possession 
on  the  day  of  the  trial  of  the  person  arrested  to  abide 
the  judgment  in  the  same  proceeding.  Should  the 
defendant  be  acquitted  the  automobile  must  be  released, 
for   it   is   only   upon   conviction   that   its   sale   may   be 

ordered. 

United  States  v.  Slusser,  270  Fed.,  818; 
United  States  v.  Hydes,  267  Fed.,  471. 

442.  Vehicle    Seized    When    Operated    Without    Consent    of 
Owner: — 

Automobile  may  be  subject  to  seizure,  although  operated 
by  chauffeur  in  unlawful  transportation  without  knowl- 
edge or  consent  of  owner. 

Lewis  V.  McCarthy  et  al.,  274  Fed.,  496; 

Grant  v.  United  States,  254  U.  S.,  505. 


SEARCH  AND  SEIZURE  103 

443.  Violent  Seizure: — 

The  right  to  seize  papers  does  not  justify  their  violent 
seizure. 

Hale  V.  Henkel,  201  U.  S..  43; 

Wilson  V.  United  States,  221  U.  S.,  361; 

United  States  v.  Kraus,  270  Fed.,  578. 

444.  When  Papers,  Books,  Etc.,  May  Be  Seized: — 

Under  section  35,  Title  II,  of  the  Volstead  Act,  the  regu- 
lations of  that  act  are  made  complementary  to  the 
Revised  Statutes,  of  which  section  3318  describes  that 
the  failure  of  a  wholesale  liquor  dealer  to  keep  a  book 
showing  all  sales  and  purchases  of  liquor  shall  consti- 
tute a  crime.  Where  the  books  are  not  kept  as  required 
by  this  section  or  insufficiently  kept,  all  documents 
showing  transactions  which  should  be  recorded  under 
the  law  may  be  seized  on  search  warrants. 
United  States  v.  Kraus,  270  Fed.,  578. 

445.  When   Papers   Were   Seized  from   Person   at  Time   of 
Arrest : — 

Certain  papers  were  taken  from  the  pockets  of  the  defend- 
ant by  the  marshal  when  the  arrest  was  made.  They 
were  afterwards  introduced  in  evidence.  The  court 
said  it  may  be  that  he  was  entitled  to  have  these  papers 
returned  to  him,  but  until  he  had  asked  for  such  return 
it  was  not  erroneous  to  receive  them  in  evidence. 
Laughter  v.  United  States,  259  Fed.,  94. 

446.  When  Seizure  May  Be  Made  Without  Warrant: — 
Officers  may  make  a  seizm-e  of  liquor  without  a  search 

warrant     where     the     offense     is     committed     in     their 
presence. 

Wiggings  V.  United  States,  272  Fed.,  41. 

Police   officers   seized   s1  ill    without    sejircli    waiTjint    which 
he  saAV  Ihroiij^li  ojxmi  window  hehl  lo  lie  hiwl'ul  seizure. 
In  Re:   Mobile,  278  Fed.,  919. 

In  no  case  is  a  prohil)ition  ol'iicer  or  agent  justilii'd  iu 
seizing  intoxicating  licjuor  or  other  property  without  a 
search  warrant,  except  as  provided  in  section  20,  which 
makes  it  his  duty  to  seize  all  intoxicating  liquors  found 


104  SEARCH  AND  SEIZURE— SEARCH  WARRANT 

being  transported  contrary  to  law  in  any  wagon,  buggy, 
automobile,  water  or  air  craft  or  other  vehicle. 
United  States  v.  Crossen,  264  Fed.,  459. 

SEARCH  WARRANT. 

447.  Absence  Will  Not  Interfere  with  Search: — 

A  defendant  cannot  avoid  the  effects  of  a  search  warrant 
by  absenting  himself  from  the  premises  to  be  searched. 
United  States  v.  Camarota,  278  Fed.,  388. 

448.  Act  of  June  15,  1917:— 

A  search  warrant  may  issue  in  manner  and  form  as  pro- 
vided by  the  act  of  June  15th,  1917,  in  aid  of  enforce- 
ment of  National  Prohibition. 

Rose  V.  United  States,  274  Fed.,  245; 

United  States  v.  Friedman,  267  Fed.,  856. 

449.  Affidavit  Held  Insufficient:— 

Prohibition  agent  made  an  affidavit  stating  that  he  had 
obtained  a  sample  of  liquor  from  a  cerain  company  and 
that  said  liquor  upon  analysis  was  shown  as  having  more 
than  one-half  of  one  per  cent  of  alcohol  by  volume.  This 
affidavit  was  held  insufficient  by  the  court  as  it  failed  to 
state  by  whom  the  analysis  had  been  made  as  well  as 
setting  forth  the  testimony  of  the  one  making  the 
analysis. 

Central  Consumers  Co.  v.  James,  United  States  Mar- 
shal, 278  Fed.,  249. 

450.  Amendment  by  Telephone  Not  Proper: — 

Amendment  of  search  warrant  by  telephone  is  not  suffi- 
cient. There  must  be  an  amendment  of  the  affidavit 
upon  which  search  warrant  issued. 

United  States  v.  Mitchell,  274  Fed.,  128. 

451.  Collateral  Inquiry: — 

It  is  established  law  that  a  collateral  inquiry  into  the 
mode  in  which  evidence  has  been  obtained  will  not  be 
allowed  when  the  question  is  raised  for  the  first  time 
at  the  trial. 

Wiggins  V.  United  States,  272  Fed.,  41; 

Silverthorne  Lumber  Co.  v.  United  States,  251  I.  S, 

385-392; 
Weeks  v.  United  States,  232  U.  S.,  383-395-396; 
Adams  v.  New  York,  192  U.  S.,  585. 


SEARCH  WARRANT  105 

452.  Consent  by  Wife  :— 

This  is  the  rule  even  though  the  wife  gave  consent  to  a 
search  unless  it  is  shown  that  she  was  the  authorized 
agent  of  the  defendant. 

United  States  v.  Rykowski,  267  Fed.,  866. 

453.  Evidence  Secured  by  Illegal  Search: — 

Evidence  obtained  by  illegal  search  is  not  admissible  in 
evidence. 

United  States  v.  Rykowski,  267  Fed.,  866. 

Liquor  taken  from  ice  chest  without  search  warrant  vio- 
lates the  fourth  amendment,  therefore,  makes  such  liquor 
so  taken  inadmissible  in  evidence. 

Berry  et.  al.  v.  United  States,  275  Fed.,  680. 

Testimony  of  chemist  as  to  analysis  of  liquor  is  inadmiss- 
ible if  liquor  upon  which  analysis  was  made  is  illegally 
seized. 

Berry  et.  al.  v.  United  States,  275  Fed.,  680; 

Dukes  V.  United  States,  275  Fed.,  142. 

454. — Information  and  Belief: — 

Affidavit  based  upon  information  and  belief  alone  is  wholly 
insufficient  as  a  basis  for  issuing  a  search  warrant. 
United  States  v.  Ray  &  Schultz,  275  Fed.,  1004; 
Veeder  v.  United  States,  252  Fed.,  414; 
United  States  v.  Michalski,  265  Fed.,  839. 

No  search  warrant  shall  issue  based  upon  suspicion,  belief, 
rumors  or  surmises. 

United  States  v.  Kelih,  272  Fed.,  484; 
Veeder  v.  United  States,  252  Fed.,  414-418; 
United  States  v.  Armstrong,  275  Fed.,  506; 

(See  opinion  page  508.) 
Ripper  V.  United  States,  178  Fed.,  24; 
United  States  v.  Kelili,  272  Fed.,  484; 
United  States  v.  Borowski.  268  Fed.,  408; 
United  States  v.  Pitotto,  267  Fed.,  603. 

455.     Insufficient  Description: — 

Search  warrant  licM  lo  he  invalid  because  of  insufficient 
description  of  place;  to  be  searched. 

United  States  v.  Alexander,  278  Fed.,  308. 


106  SEARCH  WARRANT 

456.  Less  Particularity  Required  Than  in  Other  Searches: — 

Less  particularity  is  required  in  the  searcli  warrant  as  to 
the  identity  of  liquor,  intoxicating  liquor,  etc.,  than  is 
required  for  the  search  of  other  property. 
Elrod  V.  Moss,  278  Fed.,  123. 

457.  Means  of  Committing  Felony: — 

It  is  not  necessary  in  order  to  have  a  search  warrant  under 
the  National  Prohibition  Act  to  set  out  in  the  affidavit 
that  the  property'  was  used  as  a  means  of  committing  a 
felony. 

United  States  v.  Friedman,  267  Fed.,  857. 

The  issuance  of  a  search  warrant  under  the  National  Pro- 
hibition Act  is  not  restricted  to  cases  where  property  is 
being  used  to  commit  a  felony. 

United  States  v.  Metzger,  270  Fed.,  291. 

458.  Must  Not  Change  Warrant: — 

A  search  warrant  which  was  changed  as  to  name,  date, 
locality,  etc.,  held  invalid. 

United  States  v.  Armstrong,  275  Fed.,  506. 

459.  Name  of  Particular  Party  Not  Necessary: — 

It  is  not  necessary  that  the  search  warrant  name  any  par- 
ticular party.  It  is  sufficient  if  the  place  is  properly 
described. 

United  States  v.  Camarota,  278  Fed.,  388; 
United  States  v.  Borokski,  268  Fed.,  408. 

460.  Probable  Cause: — 

An  affidavit  that  affiant  has  reasons  to  believe  and  does 
believe  that  an  illegal  act  is  being  committed  under  the 
Prohibition  Act  on  certain  premises  is  insufficient,  the 
affidavit  should  state  facts  showing  probable  cause  for 
the  issuance  of  the  search  warrant  or  that  the  commis- 
sioner determine  at  a  hearing  whether  there  is  such 
cause  for  issuance. 

United  States  v.  Rykowski,  267  Fed.,  866. 

An  affidavit  by  a  prohibition  agent  setting  out  that  the 
premises  were  used  as  a  saloon  and  dwelling  and  that 
on  a  day  and  at  an  hour  stated  that  he  purchased  intoxi- 
cating  liquor,   to-wit,   whiskey,    containing   one-half   of 
'^.e  per  cent  or  more  of  alcohol  and  the  amount  paid  for 


SEARCH  WARRANT  107 

the  liquor,  these  are  facts  upon  which  the  commissioner 
should  find  probable  cause  for  issuing  a  search  warrant. 
United  States  v.  Friedman,  267  Fed,,  857. 

461.  Property  Description: — 

Description  of  property  by  a  street  and  number  is  sufficient 

as  to  description. 

United  States  v.  Friedman,  267  Fed.,  857. 

A  description  in  a  search  warrant  of  property  to  be 
searched  is  insufficient  Avhen  said  description  is  confined 
to  certain  street  and  number  where  there  are  both  a 
north  and  south  street  of  that  name. 

United  States  v.  Rykowski,  267  Fed.,  866. 

462.  Return  Not  Essential  :— 

Failure  of  an  officer  to  make  return  of  search  warrant  does 

not  invalidate  the  search  or  seizure  made  thereunder, 

the  return  being  merely  a  ministerial  act  which  may  be 

performed  at  a  later  date. 

Rose  V.  United  States,  274  Fed.,  245. 

463.  Return  of  Property:— 

Even  though  there  was  a  seizure  of  an  illicit  still  by  officers 
acting  under  an  invalid  search  warrant,  property  will 
not  be  returned  to  defendant. 

United  States  v.  Rykowski,  267  Fed.,  866. 

464.  Return  of  Search  Warrant  :— 

The  failure  to  make  return  of  a  search  warrant  is  only 
an  irregularity  which  may  be  corrected  on  motion. 
United  States  v.  Kraus,  270  Fed.,  578. 

465.  Search  at  Night : — 

To  make  the  search  of  a  residence  at  night  lawful  a  search 
warrant  must  contain  directions  that  it  may  be  served 

at  any  time,  day  or  night. 

United  States  v.  Rykowski,  267  Fed.,  866. 

466.  Search  Warrant  Not  Necessary:— 

Where  government  ofllccrs  jumped  over  a  bar  and  made 
seizure  of  whiskey,  held  search  warrant  not  necessary. 
Kathrlner  et.  al.  v.  United  States.  276  Fed.,  808. 

A  search  warrant  is  not  needed  in  a  case  where  officer  while 
searching  other  premises  by  the  sense  of  smell  came  to 


108  SEARCH  WARRANT— SENTENCE 

the  conclusion  that  someone  was  making  mash  in  an 
adjoining  building  occupied  by  entirely  different  parties 
than  those  mentioned  in  the  warrant.  The  court  said, 
"if  an  officer  may  arrest  when  he  actually  sees  the 
commission  of  a  felony,  why  not  the  same  if  his  sense  of 
smell  informs  him  that  a  crime  is  being  committed." 
United  States  v.  Barkowski,  268  Fed.,  408. 

467.  Time  of  Serving  Warrant  Question  for  the  Jury: — 

A  search  warrant  was  secured  but  not  served  for  thirty 
days  after  its  issuance.    As  to  whether  or  not  this  was  a 
reasonable  delay  held  a  question  for  the  jury. 
Elrod  V.  Moss,  278  Fed.,  123. 

468.  Warrant  Held  Invalid  :— 

Commissioner  issued  warrant  to  search  apartment  build- 
ing including  entire  premises  of  outhouses,  sheds,  lock- 
ers, safes,  closets,  attics,  basements,  etc.,  without  first 
requiring  evidence  that  premises  or  part  thereof  were 
being  used  far  sale  of  liquor  contrary  to  the  law.  Held 
invalid. 

United  States  v.  Mitchell,  274  Fed.,  128. 

469.  Warrant  Invalid  if  Issued  Without  Oath: — 

If  a  warrant  is  issued  without  an  oath  or  affirmation  it  is 
void. 

United  States  v.  Kelih,  272  Fed.,  484. 

470.  When  Automobile  May  Be  Searched  Without  a  War- 
rant : — 

An  automobile  may  be  searched  without  a  search  warrant 
and  the  finding  of  liquor  justifies  the  search. 
United  States  v.  Bateman,  278  Fed.,  231; 
United  States  v.  Fenton,  268  Fed.,  221; 
Ex  Parte  Morrill,  35  Fed.,  267; 
United  States  v.  Welsh,  247  Fed.,  239. 

SENTENCE. 

471.  After  Term  Judgment  Final: — 

Judgment  cannot  be  set  aside  after  the  term. 
United  States  v.  Mayer,  235  U.  S.,  55. 

472.  Extent  of  Punishment  Discretionary: — 

In  imposing  sentence  trial  judge  has  sole  discretion,  within 


SENTENCE  109 

the  limits  of  the  statutes  fixing  the  penalty,  in  determin- 
ing the  amount  of  punishment  to  be  inflicted. 

Maresca  et.  al.  v.  United  States,  277  Fed.,  727. 

473.  One  Judgment  on  Conviction: — 

In  a  criminal  case  there  can  be  but  one  judgment  on  a 
conviction. 

Freeman  v.  United  States,  227  Fed.,  732. 

Where  several  crimes  are  charged  in  one  indictment  or 
several  indictments  have  been  consolidated  for  the  pur- 
pose of  trial  there  can  be  but  one  judgment  and  when 
that  judgment  is  imposed  it  must  in  terms  specify  the 
order  in  which  the  terms  of  imprisonment  are  to  com- 
mence and  terminate.  Judgment  must  be  certain  and 
definite. 

United  States  v.  Patterson,  29  Fed.,  775. 

474.  Sentence  for  More  than  one  Offense : — 

It  has  been  held  that  a  prisoner  may  not  be  sentenced  for 
more  than  one  offense  unless  the  different  convictions 
were  had  at  the  same  term  and  both  were  obtained  pre- 
vious to  the  sentence.  In  other  words,  that  there  is  no 
authority  for  convicting  a  prisoner  of  felony  at  one 
term  of  court  and  regularly  passing  sentence  upon  him 
and  then  remanding  him  to  jail  until  the  next  succeed- 
ing term  and  again  convicting  him  and  sentencing  him 
for  another  felony. 

Ex  Parte  Lamar,  274  Fed.,  175. 

475.  Sentence  Not  to  be  Changed: — 

A  sentence  in  a  criminal  case  should  not  be  changed  unless 
prisoner  has  been  notified  or  consented  to  the  modi- 
fication. 

United  States  v.  Lane,  221  Fed.,  299. 

476.  Single  Sentence  for  Three  Offenses: — 

A  single  scntciK^e  iiuj)()siiig  bolli  fine  and  imprisonment 
was  held  not  void  because  ol"  the  fact  that  the  th^fendant 
pleaded  guilty  to  an  information  which  charged  llie 
manufacture  of  intoxi(!ating  liquor  witliout  a  permit, 
failure  to  kecj)  j)roper  records  aiul  possession  of  properly 
designed  to  manufacture  licjuor  contrary  to  hiw. 
Ex  Parte  Poole,  273  Fed.,  623. 


110  SENTENCE— SUFFICIENCY    OF    EVIDENCE 

477.  Suspension  of  Sentence: — 

District  court  exceeds  its  autliority  and  power  by  suspend- 
ing sentence  indefinitely. 

Ex  Parte  United  States,  242  U.  S.,  27. 

478.  Unauthorized  Sentence  Need  Not  Effect  all  Counts: — 

Where  court  gave  sentence  under  one  count  which  was  not 
authorized  it  was  held  not  to  etfect  sentence  on  other 
counts  which  were  good. 

Laurie  v.  United  States,  278  Fed.,  934. 

479.  When  Sentence  May  be  Corrected: — 

Defendant  was  released  on  a  writ  of  habeas  corpus  be- 
cause of  faulty  sentence.     It  was  held  that  the  court 
might  correct  sentence  after  the  term  had  expired. 
Bryant  v.  United  States,  214  Fed.,  51. 

480.  When  Sentences  Run  Concurrently: — 

Where  defendant  is  already  in  execution  of  a  former 
sentence  and  where  the  second  sentence  does  not  state 
that  the  term  is  to  begin  at  the  expiration  of  the  former, 
the  second  will  run  concurrently  with  the  first  in  the 
absence  of  a  statute  providing  a  different  rule. 

Ex  Parte  Lamar,  274  Fed.,  at  page  176; 

Kirkman  v.  McCIaughry,  152  Fed.,  255. 

STORAGE. 

481.  Storag^e  for  Private  Use: — 

The  Volstead  Act  does  not  prohibit  the  storage  of  liquor 
in  a  warehouse  for  private  use. 

Street  Lincoln  Safe  Deposit  Co.,  254  U.  S.  88. 

482.  When  Liquor  May  be  Stored  in  Warehouse : — 

One  may  store  liquor  in  a  warehouse  if  the  liquor  is  to  be 
used  in  one's  own  home  under  such  conditions  as  are 
permitted  by  Section  33,  of  Title  II,  of  the  act. 
Street  Lincoln  Safe  Deposit  Co.,  254  U.  S.  88. 

SUFFICIENCY  OF  EVIDENCE  TO  CONVICT. 

483.  Confession: — 

Corroboration  of  the  defendant  in  his  confession  that  he 
had  transported  liquor.     Held.     Sufficient. 

Berryman  v.  United  States,   259  Fed.,  208. 


SUFFICIENCY  OF  EVIDENCE  TO  CONVICT  111 

484.  Circumstantial  Evidence: — 

Evidence  tended  to  sliow  that  defendants  shipped  two 
trunks  from  Kansas  City  to  a  town  in  Oklahoma.  These 
trunks  were  opened  and  were  found  to  contain  whiskey. 
A  government  agent  traced  check  number  of  trunks 
and  located  parties  holding  checks  to  a  sleeper  on  the 
train.  He  telegraphed  ahead  to  another  agent  who 
boarded  the  train  one  station  from  place  to  which  ticket 
read.  Defendants  left  train  at  the  watering  tank  and 
started  to  run,  pursued  by  officer.  One  of  the  defendants 
dropped  an  overcoat  carrying  his  name  which  later  led 
to  arrest.    Held.    Sufficient. 

Williams  v.  United  States,  257  Fed.,  57. 

485.  Failure  to  Deny  Incriminating  Accusations: — 
Defendant  was  the  owner  of  a  tramp  launch  plying  on  the 

Mississippi  River.  He  was  arrested  some  tAventy  or 
thirty  miles  above  Memphis  by  a  Tennessee  officer  and 
a  cargo  of  whiskey  found  on  board.  Bills  of  lading 
showed  distination  to  be  Lake  Providence,  Louisiana. 
The  defendant  said  they  were  intending  to  land  in 
Pleasantview,  Tennessee,  to  pick  up  the  o^waier  of  the 
whiskey.  The  defendant's  helper  in  his  presence  stated 
that  owner  of  the  whiskey  was  to  meet  them  there  with 
two  trucks  upon  which  to  unload  the  whiskey.  The 
fact  that  the  defendant  failed  to  deny  helper's  statement 
made  in  his  presence  leads  to  the  inference  that  the 
cargo  of  whiskey  was  intended  for  Tennessee. 
Bishop  V.  United  States,  259  Fed.,  195. 

486.  Finding  Mash:— 

Agents  found  on  defendant's  farm  "twenty  gallon  iron 
pot  on  fire  full  of  stuff  which  looked  as  if  it  had  been 
boiled.''  In  the  cornei-  of  a  room  was  found  barrel  con- 
taining meal  and  molasses,  liurcau  drawer  contained 
two  bottles  of  substance  adniillcd  by  the  defendant  to 
be  whiskey.     Held.     Sufficient. 

Smiling  v.  United  States,  258  Fed.,  235. 

487.  Sufficiency:— 

Evidence  held  suffieifMit. 

Rose  V.  United  States,  274  Fed.,  245. 


112  SUFFICIENCY  OF  EVIDENCE— TAX 

It  was  held  there  was  sufficient  evidence  to  warrant  court 
in  refusing  to  direct  a  verdict  where  it  was  shown  agents 
jumped  over  the  bar  and  made  seizure  of  liquor  which 
one  of  the  defendants  admitted  to  have  been  selling  at 
25  cents  a  drink. 

Kathriner  et.  al.  v.  United  States,  276  Fed.,  808. 

Where  evidence  disclosed  the  defendant  was  a  member  of 
a  club  selling  liquor  and  that  he  personally  sold  drinks 
there,  it  was  held  sufficient  to  convict  of  unlawful  pos- 
session and  of  maintaining  a  nuisance. 

Page  et.  al.  v.  United  States,  278  Fed.,  41. 

488.  Venue  :— 

Fact  that  city  is  not  located  as  to  state  held  waived  when 
omission  is  not  called  to  attention  of  trial  court. 
Weems  et.  al.  v.  United  States,  257  Fed.,  57. 

TAX. 

489.  Confiscatory: — 

Tax  held  confiscatory. 

J.  &  A.  Friegberg  Co.  v.  Dawson  et.  al.,  274  Fed.,  420. 

490.  Definition:— 

A  tax  is  an  enforced  contribution  for  the  payment  of 
public  expenses. 

Houck  V.  Little  River  Drainage  District,  239  U.  S.,  254. 

Generally  speaking  a  tax  is  a  pecuniary  burden  laid  upon 
individuals  or  property  for  the  purpose  of  supporting 
the  government. 

New  Jersey  v.  Anderson,  203  U.  S.,  483. 

491.  No  Repeal  of  3296  Rev.  Stats:— 

War  Prohibition  Act  did  not  repeal  revised  statute  3296 
requiring  tax  to  be  paid  before  removal  of  liquor  from 
warehouse. 

Maresca  et.  al.  v.  United  States,  277  Fed.,  727. 

492.  Payable  on  Contingency: — 

There  is  no  objections  to  the  validity  of  a  tax  as  an  excise, 
that  is  payable  upon  the  happening  of  an  event. 

J.  &  A.  Friegberg  Co.  v.  Dawson  et.  al.,  274  Fed.,  420. 


TAX  113 

-  493.     Revised  Statute  3223  Does  Not  Apply  :— 

Although  a  penalty  may  be  designated  as  a  tax  this  "u-ould 
not  prevent  an  injunction  to  restrain  the  assessment  or 
collection  of  the  tax  as  revised  statute  3223  Avould  not 
apply. 

Lipke  V.  Lederer,  (42  S.  Ct.,  551.) 

494.  Revised  Statute  3296  in  Effect  Until  Volstead  Act  :— 

To  determine  if  removal  of  liquor  from  warehouse  on  No- 
vember loth,  1919,  without  payment  of  tax  constituted 
an  offense  act  of  February  24th,  1919,  requiring  tax,  and 
revised  statute  3296  should  be  considered  together.  Re- 
vised statute  3296  remained  in  force  until  Volstead  Act 
became  effective. 

Maresca  et.  al.  v.  United  States,  277  Fed.,  727. 

495.  Right  to  Own  Not  Subject  to  Tax:— 

The  mere  right  to  hold  and  own  property  cannot  be  made 
the  subject  of  excises. 

J.  &  A.  Friegberg  Co.  v.  Dawson  et.  al.,  274  Fed.,  420. 

496.  Rule  to  Determine  if  Confiscatory: — 

To  determine  if  tax  is  confiscatory  reference  must  be  had 
to  market  price  of  commodity  taxed. 

J.  &  A.  Friegberg  Co.  v.  Dawson  et.  al.,  274  Fed.,  420. 

497.  Sweet  Cider:— 
Sweet  cider  not  taxable. 

Monroe  Cider  Vinegar  and  Fruit  Co.  v.  Riodan,  280 
Fed.,  624. 

498.  "  Tax  "  and  "  Penalty  "  :— 

For  distinction  between  tax  and  penalty,  see 
United  States  v.  Chouteau,  202  U.  S.,  693; 
Thome  v.  Lynch,  269  Fed.,  995. 

Penalty  imposed  by  Section  35  cannot  be  imposed  by  dis- 
traint as  to  do  so  would  be  taking  it  witliout  due  process 
of  law. 

Kausch  V.  Moore.  268  Fed.,  668; 

Kelly  V.  Lewellyn,  274  Fed.,  112; 

Ledbetter  v.  Bailey,  274  Fed.,  375. 

499.  Tax  Payer  Entitled  to  Hearing: — 

Section  35  of  tlie  National  I'roliiljjlion  Act  prescribes  no 
definite  mode  for  enforcing  tlie  imposition  which  it  di- 


114  TAX— TRANSPORTATION 

rects,  before  collection  of  taxes  levied  by  statutes,  en- 
acted in  plain  pursuance  of  the  taxing  power  can  be  en- 
forced the  tax  payer  must  be  given  fair  opportunty  for 
hearing ;  this  is  essential  to  due  process  of  law. 
Lipke  V.  Lederer,  (42  S.  Ct.,  551.) 

500.  Tax  Remitted : — 

Tax  was  remitted  during  war  prohibition. 

Maresca  et.  al.  v.  United  tSates,  277  Fed.,  727. 

501.  When  Government  Carries  Burden: — 

The  burden  is  upon  the  prosecution  to  prove  that  whiskey 
charged  to  have  been  removed  in  violation  of  revised 
statute  3296  was  untax  paid. 

Dukes  V.  United  States,  275  Fed.,  142. 

502.  Wholesale  Dealer: — 

A  wholesale  dealer  of  liquor  held  subject  to  tax  during 
war  prohibition. 

Maresca  et.  al.  v.  United  States,  277  Fed.,  727. 

503.  Word  "Tax"  Does  Not  Necessarily  Mean  Tax:— 

The  mere  use  of  the  word  "tax"  in  an  act  primarily  de- 
signed to  define  and  suppress  crime  is  not  enough  to 
show  that  within  the  true  intendment  of  the  term  a  tax 
was  laid.  When  by  its  very  nature  the  imposition  is  a 
penalty  it  must  be  so  regarded. 

Lipke  V.  Lederer,  (42  S.  Ct.,  551.) 
Bailey  v.  Drexel  Furniture  Co.,  (42  S.  Ct.,  449.) 
Helwig  V.  United  States,  188  U.  S.,  605; 
O'Sullivan  v.  Felix,  233  U.  S.,  318. 

TRANSPORTATION. 

504.  Across  State  to  Another: — 

It  is  not  transportation  under  the  Reed  Amendment  to 
carry  liquors  from  a  state  in  which  sale  was  permitted 
across  a  state  in  which  it  was  prohibited  when  it  is  shown 
that  liquor  was  destined  for  another  state  in  which  sale 
was  permitted. 

Berryman  v.  United  States,  259  Fed.,  208; 

Preyer  v.  United  States,  260  Fed.,  157; 

HoUins  V.  United  States,  263  Fed.,  657; 

Whiting  V.  United  States,  263  Fed.,  477. 


TRANSPORTATION  115 

505.  Act  of  March  3rd,  1917:— 

Act  of  Marcli  3rd,  1917,  is  not  applicable  to  a  state  unless 
it  has  adopted  a  g-eneral  policy  of  prohibition  through- 
out its  territorial  limits. 

Laughter  v.  United  States,  259  Fed.,  94. 

506.  Arrest  Before  Crossing  State  Line: — 

There  is  no  transportation  of  liquor  under  the  Reed  Amend- 
ment when  it  is  not  shown  that  defendant  or  his  agent 
has  reached  the  state  line  at  the  time  of  his  arrest. 
Berman  v.  United  States,  265  Fed.,  259. 

507.  Arrest  Outside  of  State: — 

The  defendant  transported  liquor  in  his  boat  into  Ten- 
nessee, it  being  shown  it  was  his  intent  to  leave  the 
liquor  in  that  state.  It  becomes  immaterial  that  he  had 
incidentally  gone  out  again  with  his  cargo  or  that  the 
arrest  was  made  outside  the  state  line. 

Bishop  V.  United  States,  259  Fed.,  195. 

508.  Authority  Given  by  Permit : — 

A  permit  under  Section  6  of  the  National  Prohibition  Act 
does  not  authorize  transportation  of  liquor  except  for 
non-beverage  purposes,  therefore,  a  permit  fraudulently 
secured  for  the  purpose  of  transporting  for  other  pur- 
poses to  be  no  permit  at  all  and  of  no  protection  to  one 
acting  under  it. 

Held  et.  al.  v.  United  States,  276  Fed.,  253. 

509.  Automobile  as  Common  Carrier: — 

An  automobile  may  become  a  "common  carrier"  depend- 
ing upon  use. 

United  States  v.  Simpson,  257  Fed.,  860. 

510.  Circumstantial  Evidence: — 

Defendant  was  arrested  while  unloading  whiskey  at  a 
wharf  in  Virginia.  The  labels  on  the  packages  and 
bottles  indicated  that  the  wliiskey  came  from  a  point 
williout  the  state  of  Virginia.  Held.  Proof  of  trans- 
portation from  another  state. 

Lindsey  v.  United  States,  2G4  Fed.,  94. 

Tlie  possession  of  whiskey  by  defcudaiit  at  a  time  when 
it  was  being  unloaded  fi'om  a  wharf  to  an  automobile 
in  the  state  with  nothing  to  show  any  intervening  pos- 


116  TRANSPORTATION 

session  or  control  leads  to  the  legimate  inference  that 
it  has  been  transported  into  the  state. 

Lindsey  v.  United  States,  264  Fed.,  94. 

In  the  present  case  the  automobile  was  standing  in  the 
garage  with  liquor  in  it.  The  defendant  was  in  his 
house,  eating  his  breakfast.  The  government  does  not 
claim  that  the  defendant  had  theretofore  been  seen 
using  it  for  the  illegal  transportation  charged.  The 
evidence  might  perhaps  justify  an  inference  that  the 
liquor  had  been  transported  in  the  automobile  to  the 
garage,  or  that  the  liquor  was  loaded  with  intent  to 
transport  it  from  the  garage,  or  that  it  was  temporarily- 
halted  in  the  progress  of  transportation.  But  this  is  not 
the  degree  of  proof  required  to  warrant  seizure.  The 
evidence  does  not  show  that  any  one  was  discovered  in 
the  act  of  transporting.  It  is  not  necessary  that  the 
vehicle  should  be  discovered  while  actually  in  motion, 
but  it  is  necessary  that  some  one  should  be  discovered 
performing  some  act  in  furtherance  of  transportation, 
and  the  government's  own  evidence  here  shows  that  no 
one  was  caught  in  such  an  act  at  the  time  the  seizure 
was  made. 

Furthermore,  a  seizure  without  warrant  in  a  private 
garage,  pursuant  to  an  unauthorized  search  upon  the 
charge  of  a  mere  statutory  misdemeanor,  is  an  unlawful 
seizure  and  cannot  be  the  basis  of  a  valid  forfeiture 
under  the  twenty-sixth  section  of  the  Volstead  law.  The 
right  of  an  officer  of  the  law  to  enter  to  arrest  for,  or 
prevent,  felony  or  breach  of  the  peace,  in  which  actual 
or  threatened  violence  is  an  essential  element,  is  not 
here  an  issue. 

United  States  v.  Slusser,  270  Fed.,  821. 

511.  Evidence  Held  Admissible : — 

Evidence  that  incorporators  in  forming  a  company  used 
fictitious  names  becomes  competent  for  the  purpose  of 
showing  organization  for  fraudulent  reasons,  viz. :  the 
unlawful  transportation  of  liquor. 

Raid  et.  al.  v.  United  States,  276  Fed.,  253. 

512.  Exception  as  Matters  of  Defense : — 

It  is  made  an  offense  to  "cause  intoxicating  liquors  to  be 
transported  in  interstate  commerce  except  for  scientific, 
sacramental,   medicinal   or   mechanical   purposes,"   into 


TRANSPORTATION  117 

prohibition  state.  (Act  of  March  3rd,  1917.)  It  was 
held  that  the  exceptions  need  not  be  negatived  but  that 
they  were  matters  of  defense. 

United  States  v.  Simpson,  257  Fed.,  860. 

513.  For  Private  Use  :— 

Purchasing  liquor  in  one  state  and  transporting  it  into  a 
prohibition  state  in  a  privately  owned  automobile  for  a 
personal  use  and  not  for  sale  is  not  violation  of  Act 
of  March  3rd,  1917. 

United  States  v.  Simpson,  257  Fed.,  860. 

514.  From  Canada  to  United  States : — 

Right  to  seize  vehicle  used  in  transportation  held  not  to 
apply  to  liquors  transported  from  Canada  into  the  United 
States  in  violation  of  act  August  10,  1917. 

United  States  v.  One  Ford  Automobile,  262  Fed.,  374. 

515.  Guilty  Knowledge: — 

A  defendant  was  charged  in  a  federal  court  of  Tennessee 
with  violation  of  the  Reed  Amendment  in  that  he  had 
purchased  whiskey  in  Missouri  and  had  it  shipped  into 
Tennessee.  The  defendant  was  arrested  in  Mississippi. 
The  court  gave  an  instruction  that  the  defendant  was 
guilty  "if  whiskey  was  ordered  or  purchased  by  some- 
one in  Caruthersville,  Missouri,  to  be  shipped  to  Mem- 
phis, Tennessee,  in  interstate  commerce,  and  after  it 
reached  the  landing  in  Mississippi  the  defendant  was 
hired  to  bring  that  liquor  from  there  to  Lakeview,  Mis- 
sissippi, and  there  deliver  it  to  a  man  from  Memphis, 
Tennessee,  then  he  would  be  guilty  of  assisting  in  trans- 
porting liquor  in  interstate  commerce  and  would  be 
guilty  under  the  law  and  you  should  so  find."  Held. 
Error  because  it  ignored  the  essential  element  of  guilty 
knowledge  and  did  not  define  an  offense  within  the 
jurisdiction  of  the  court. 

Moran  v.  United  States,  264  Fed.,  769. 

Transportation  of  liquor  is  not  committed  until  it  is  actu- 
ally eari'ied  into  llic  oilier  state. 

Moriui  V.  United  States,  2G4  Fed.,  768. 

516.  Held  to  State  Offense:— 

Wherein  an  indictment  charged  the  purchase  of  li(iuor 
in  one  state  "to  Ijc  traiisi)oi-1ed  in  interstate  commerce" 


118  TRANSPORTATION 

for  beverage  purposes  into  another  state  which  pro- 
hibited its  manufacture,  it  was  held  to  state  an  offense 
under  the  Reed  Amendment. 

United  States  v.  Collins,  264  Fed.,  380. 

517.  Indictment : — 

Indictment  held  sufficient. 

United  States  v.  Simpson,  257  Fed.,  860. 

518.  Intent  :— 

Mere  intent  to  transport  is  not  enough  under  circum- 
stances in  this  case. 

Collins  V.  United  States,  263  Fed.,  657. 

519.  Knowledge  Necessary: — 

There  can  be  no  conviction  for  transportation  when  party 
carries  liquor  in  an  automobile  from  one  point  in  the 
state  to  another  point  in  the  same  state  unless  it  may  be 
shown  that  the  transportation  between  the  two  points 
was  but  a  link  in  the  interstate  transportation  of  the 
liquor  and  that  the  accused  had  knowledge  of  this  fact. 
Ousler  V.  United  States,  263  Fed.,  968. 

520.  Need  Not  Negative  Permit : — 

The  government  is  not  required  to  prove  that  the  defend- 
ant had  no  permit  to  transport  liquor. 
Sharp  V.  United  States,  280  Fed.,  86. 

521.  Penalty  Must  be  Under  Act  Violated:— 

The  liquor  was  transported  into  the  District  of  Columbia 
in  violation  of  the  act  but  not  in  violation  of  the  Shep- 
herd law.  It  was  held  in  this  case  that  there  could  be 
no  forfeiture  mider  the  latter  act. 

District  of  Columbia  v.  Gladding,  263  Fed.,  628. 

522.  Section  3450  Rev.  Stat.  Not  Repealed  by  Section  26  of 
the  Act : — 

Section  26  of  the  National  Prohibition  Act  which  provides 

for  a  forfeiture  of  vehicles  used  in  transporting  liquor 

illegally   relates   only   to   transportation,    consequently, 

does  not  repeal  revised  statute  3450  which  provides  for 

a  forfeiture  of  a  vehicle  not  only  used  in  transporting 

but  in  concealing  or  depositing  liquors  on  which  the  tax 

has  not  been  paid. 

Reo  Atlanta  Co.  v.  Stearns,  279  Fed.,  422. 


TRANSPORTATION  119 

523.  Sufficient  to  Convict: — 

Evidence  held  sufficient  to  sustain  a  conviction  of  trans- 
portation. 

Berryman  v.  United  States,  259  Fed.,  208; 
Jones  V.  United  States,  259  Fed.,  104; 
Bishop  V.  United  States,  259  Fed.,  195. 

524.  Transportation  Company  Not  a  Common  Carrier : — 

Section  240  (U.  S.  C.  S.,  10410)  making  it  a  violation  of 
law  to  "knowingly  ship"  or  caused  to  be  shipped  from 
one  state  to  another  any  package,  etc.,  containing  spirit- 
ual liquors,  etc.,  does  not  apply  to  carriage  of  liquor  by 
a  truck  company  not  a  common  carrier  but  which  eon- 
fines  itself  to  renting  or  hiring  of  trucks  by  day  or  trip. 
One  Truck  Load  of  Whiskey  v.  United  States,  274 
Fed.,   99. 

525.  Transportation  in  Washington  Illegal : — 

Transportation  of  liquor  in  the  state  of  Washington  held 
illegal. 

Ranier  Brewing  Co.  v.  Great  Northern  Pacific  S.   S. 
Co.,  (42  S.  Ct.,  432). 

526.  Trans-Shipment  Prohibited: — 

The  National  Prohibition  Act,  Section  3,  Title  II,  prohibits 
the  transportation  across  the  United  States,  and  trans- 
shipment by  foreign  vessels. 

Grogan  v.  Hiriam  Walker  &  Sons,  (42  S.  Ct.,  423). 

527.  Voluntary  Transportation  Necessary: — 

To  constitute  a  violation  of  the  Reed  Amendment  warrant- 
ing conviction  for  transportation  of  interstate  commerce 
there  must  be  a  voluntary  transportation.  There  can  be 
no  conviction  where  a  defendant  is  ordered  to  cross  the 
state  by  an  officer. 

Payne  v.  United  States,  265  Fed.,  265. 

528.  When  Purchase  May  be  Sho'Am: — 

It  is  competent  to  show  purchase  in  another  state  of  whis- 
key, etc.,  as  an  incident  to  its  unlawful  transportation. 
Billingsley  v.  United  States,  274  Fed.,  86. 

529.  When  Transportation  from  Warehouse  is  Not  Illegal:— 
Transportation  of  intoxicating  licjuor  from  a   wardiouse 

to  a  i-esidence  for  private  use  is  not  prohibited  mider 
Title  II,  Section  3,  of  the  National  Prohibition  Act. 

Street  v.  Lincoln  Safe  Deposit  Co.,  254  U.  S.,  88.     (41 
S.  Ct.,  31.) 


120  TRANSPORTATION— WITNESSES 

0^\Tier  may  not  transport  liquor  from  bonded  warehouse 
to  own  residence  for  beverage  purposes. 
Cornell  v.  Moore,  (42  S.  Ct,  176). 

Transportation  can  be  made  from  bonded  warehouse  to 
wholesale  druggist  without  violation  of  law. 
Cornell  v.  Moore,  (42  S.  Ct.,  176). 

WITNESSES. 

530.  Agent  of  Dry  League  Not  Disqualified  Because  of  That 
Fact  :— 

The  fact  that  witness  was  employed  by  the  Dry  Mainte- 
nance League  to  secure  evidence  does  not  disqualify  him 
or  prevent  conviction  upon  his  uncorroborated  testimony. 
Rose  V.  United  States,  274  Fed.,  245; 
Grimm  v.  United  States,  156  U.  S.  604-611. 

531.  Belief  in  Divinity  as  Effecting  Competency: — 

For  rule  as  to  obligation  of  oath  as  effecting  the  compet- 
ency of  a  witness  who  does  not  believe  in  divine  punish- 
ment, see : 

United  States  v.  Miller,  236  Fed.,  798. 

532.  Conviction  of  Crime: — 

One  convicted  of  crime  may  testify. 

Rose  V.  United  States,  237  Fed.,  810; 
Pakas  V.  United  States,  240  Fed.,  350; 
Also  see:    Maxey  v.  United  States,  207  Fed.,  327. 

533.  Examination  as  to  Third  Degree: — 

Cross  examination  as  to  third  degree  held  improper. 
Rich  V.  United  States,  271  Fed.,  566. 

534.  Good  Character: — 

A  witness  who  had  testified  to  the  good  character  of  a  de- 
fendant may  be  cross  examined  on  the  question  as  to 
whether  or  not  he  had  ever  heard  of  the  defendant  being 
accused  of  acts  inconsistent  with  the  good  character 
which  he  has  given  him  by  his  testimony. 

Jungquey  v.  United  States,  22  Fed.,  766. 

535.  Guilt  Assumed  by  Falsification: — 

Falsification  by  defendant  gives  rise  to  an  assumption  of 
guilt  to  be  weighed  by  the  court. 

Lindsey  v.  United  States,  264  Fed.,  94; 
Wilson  V.  United  States,  162  U.  S.,  613; 
Allen  V.  United  States,  164  U.  S.,  492. 


WITNESSES  121 

536.  Impeachment: — 

If  witness  testified  differently  at  a  former  trial  his  testi- 
mony may  be  read  for  the  purpose  of  impeaching  him 
although  he  admitted  on  the  second  trial  he  did  testify 
differently  at  the  time  of  the  first  trial. 

Tacoma  Ry.  &  Power  Co.  v.  Cotahry,  235  Fed.,  872. 

Where  attorney  made  use  of  an  affidavit  previously  sworn 
to  by  one  of  his  own  witnesses  and  used  the  same  during 
the  course  of  the  examination  of  the  witness  for  the  pur- 
pose of  refreshing  the  witness'  recollection  he  could  not 
be  said  to  be  impeaching  his  own  witness. 

George  Brown  v.  O'Connor,  238  Fed.,  552. 

537.  Impeachment  of  Own  Witness : — 

Prosecuting  attorney  may  question  a  government  witness 
as  to  previous  statement  when  he  is  surprised  by  the 
testimony  of  the  witness. 

Schonfeld  v.  United  States,  277  Fed.,  935. 

538.  Leading  Questions: — 

For  the  rule  as  to  what  is  considreed  a  leading  question, 
see : 

DeWitt  V.  Skinner,  232  Fed.,  443. 

539.  No  Cross  Examination  on  Illegally  Obtained  Evidence:  — 
Witness  should  not  be  cross  examined  on  papers,  checks, 

etc.,  which  have  been  held  illegally  seized  under  a  search 
warrant. 

Honeycutt  v.  United  States,  277  Fed.,  941. 

540.  Previous  Arrest: — 

When  witness  may  be  cross  examined  as  to  previous  arrest. 
Fisk  V.  United  States,  279  Fed.,  12. 

541.  Proof  of  Inconsistent  Statements: — 

A  witness  testified  lie  did  not  remember  making  inconsist- 
ent statements.  It  was  held  that  this  avouUI  not  prevent 
proof  that  he  did  make  such  statements  on  the  ground 
that  it  was  collateral  matter. 

Woods  V.  United  States,  279  Fed.,  707. 

542.  Proof  of  Previous  Conviction: — 

Witness  miiy  be  asked  on  cross  examination  if  he  had  jirc- 
viously  ])e<'n  convicted  and  sentenced  for  a  similar 
offense. 

Fields  V.  United  States,  221  Fed.,  242. 


122  WITNESSES 

543.  Recall  of  Witness  Discretionary: — 

It  is  discretionary  witli  the  court  as  to  whether  or  not  a 
witness  should  be  recalled. 

Haucks  V.  Frey,  228  Fed.,  779. 

544.  Refreshing  Recollection: — 

Witness  may  refresh  recollection  by  use  of  notes. 
McClendon  v.  United  States,  229  Fed.,  591. 

Witness  may  use  documents  which  serve  to  refresh  his 
recollection  even  though  they  were  not  prepared  by 
himself. 

McHenry  v.  United  States,  276  Fed.,  767. 

545.  Scope  of  Gross  Examination: — 

While  as  a  rule  cross  examination  is  confined  to  that 
brought  out  on  direct  examination,  still  the  cross  exam- 
ination need  not  necessarily  be  limited  to  the  specific 
or  particular  details  inquired  of  during  the  examina- 
tion in  chief. 

DeWitt  V.  Skinner,  232  Fed.,  443; 

Commercial  State  Bank  v.  Moore,  227  Fed.,  19; 

Owl  Creek  Coal  Co.  v.  Goleb,  232  Fed.,  445. 

546.  Testimony  False  in  Part: — 

If  a  witness  testified  falsely  in  part  his  whole  testimony 
may  be  disregarded  unless  corroborated. 
Parks  V.  Roth,  234  Fed.,  289. 

547.  V/hen  Failure  of  Defendant  to  Testify  May  Be  Con- 
sidered : — 

In  proceedings  to  forfeit  an  automobile  it  was  held  that 
inasmuch  as  this  was  a  civil  action  the  failure  of  the 
party  to  the  action  to  testify  might  be  considered  by  the 
jury. 

One  Buick  Automobile  v.  United  States,  275  Fed.,  809. 

548.  V/ife  of  Defendant  Testifying  Against  Co-Defendant:— 
The  question  of  competency  as  effecting  a  wife  of  a  de- 
fendant who  has  pleaded   guilty  in  testifying  against 
co-defendants. 

Knoell  V.  United  States,  239  Fed.,  16. 

A  witness  v,dio  is  the  wife  of  a  co-conspirator  with  de- 
fendants on  trial  may  testify,  if  her  testimony  is  limited 
to  matters  not  involving  her  husband. 

Knoell  V.  United  States,  239  Fed.,  16. 


WITNESSES  123 

549.  Witness  Not  Compelled  to  Testify  Against  Self: — 
Statute  ereatinji'  presumption  because  of  possession  is  not 

compelling  the  witness  to  testify  against  himself. 
Freedman  v.  United  States,  276  Fed.,  792. 

550.  Witness  Not  To  Be  Interrupted  by  Jurors : — 

Jurymen  should  not  be  permitted  to  interrupt  a  Avitness 
with  unneeessarj^  questions.  A  jury  should  listen  to  the 
evidence,  coimsel  should  ilieit  it. 

Pacific  Improvement  Ck).  v.  Weidenfeld,  277  Fed.  225. 


124  FORMS 


GROUP  I. 

Forms  Used  in  Abatement  of  Nuisance  Under  Section  22, 
Title  II,  of  Volstead  Act. 

I.  Bill  of  Complaint. 

II.  Order  for  Temporary  Writ  of  Injunction. 

III.  Temporary  Writ  of  Injunction. 

IV.  Motion  to  Dismiss  Bill. 
V.  Answer  to  Bill. 

VI.  Order  for  Permanent  Injunction. 

VII.  Permanent  Injunction. 

VIII.  Amendment  to  Bill. 

.  IX.  Additional  Form  of  Motion  to  Dismiss  Bill. 


FORMS  125 

I. 

BILL    OF    COMPLAINT   TO   ABATE    NUISANCE    UNDER 
SECTION  22,  OF  TITLE  II,  OF  VOLSTEAD  ACT. 

IN    THE   DISTRICT   COURT    OF    THE   UNITED    STATES 

FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION. 


UNITED  STATES  OF  AMERICA, 

Plaintiff, 

V. 

(Name  defendants  here.) 

Defendants. 


IN  EQUITY 

Bill  for  Injunction. 


To  the  Honorable  Judge  of  the  District  Court  of  the  United 
States  for  the  Southern  District  of  Illinois,  Northern  Division, 
sitting  in  Equity. 

I.  The  plaintiff,  the  United  States  of  America,  is  a  corpo- 
ration sovereign,  and  this  suit  is  prosecuted  in  its  name  and  on 

its  behalf  by  ,  United  States  Attorney, 

for  the  Southern  District  of  Illinois,  pursuant  to  authority 
thereto  granted  by  Section  22,  Title  II,  ''National  Prohibition 
Act,"  and  for  the  purpose  of  enjoining  and  abating  a  certain 
public  and  common  nuisance  as  defined  in  Section  21,  Title  II 
of  said  Act  of  Congress,  and  now  existing  upon  certain  premises 
situated  within  the  State  and  Southern  District  of  Illinois, 
Northern  Division  thereof,  more  particularly  described  in  that 
paragraph  of  this  bill  marked  and  numbered  IV. 

II.  The  following  named  persons  are  hereby  made  parties 
defendant  hereto : 
,  all  residents  of  the  City  of 

(Name  defendants  here) 

,  County, 

State. 

HI.  This  is  a  suit  of  a  civil  nature  and  arising  under  the 
Constitution  and  laws  of  the  United  States,  and  jurisdiction 
thereof  is  given  to  this  Honorable  Court  by  Section  22  of  Title 
II  of  the  said  Act  of  Congress  and  by  Section  24  of  the  Judicial 
Code  of  the  United  States. 

IV.  The  plaintiff  is  informed  and  verily  believes  and 
therefore  alleges  on  information  and  belief  that  the  following 
is  a  description  of  the  premises  (hei-einafter  referred  to  as 
"said  premises")  upon  which  said  ])ublic  and  common  nuisance 
exists. 

(Legal  description  of  land) 


126  FORMS 

V.  The  plaintiff  is  informed  and  verily  believes  and  there- 
fore  alleges    on   information   and   belief   that   the    defendant 

alias  is  the  owner 

and  proprietor  of  the  business  on  said  premises. 

That  the  defendant is  the  bartender 

and  is  the  holder  of  a  license  issued  by  the  City  of , 

County,  ,  by  which  said 

license  said    is  authorized   to   operate  a 

soft  drink  parlor  on  said  premises. 

That  the  defendants and 

are  the  owners  of  the  above  described 

premises. 

VI.  The  plaintiff  is  informed  and  verily  believes  and 
therefore  alleges  on  information  and  belief  that  the  said  prem- 
ises are  used  and  maintained  as  a  place  where  intoxicating 
liquor,  as  defined  by  Section  I  of  Title  II  of  said  "National 
Prohibition  Act"  is  manufactured,  sold  repeatedly,  kept,  or 
bartered  in  violation  of  the  provisions  of  said  Title,  by  the 
defendants  above  named,  and  said  premises  and  all  intoxicat- 
ing liquor  and  property  kept  and  used  in  maintaining  the  same 
are  a  public  and  common  nuisanse  as  defined  and  declared  by 
Section  21  of  Title  II  of  said  "National  Prohibition  Act,"  and 
that  said  nuisance  is  a  continuing  nuisance. 

That  the  defendant  first  above  named  sold  whiskey  and 
gin  and  the  defendant  second  above  named  sold  whiskey  which 
is  intoxicating  liquor  as  defined  by  Title  II  of  the  "National 
Prohibition   Act",    on   the   premises   described   in   Paragraph 

IV  of  this  bill  in  equity,  said  sales  being  made  to 

on  the  same  premises  described  in  Paragraph  IV  of  this  bill  in 
equity  and  said  person  herein  named  who  made  said  purchases 
from  the  defendant  first  above  named  and  the  defendant  second 
above  named  in  this  bill  has  made  affidavit  setting  forth  the  par- 
ticulars of  said  sales  and  which  said  affidavit  is  attached  to  this 
bill  and  made  a  part  hereof  and  said  affidavit  is  marked  for  iden- 
tification, Exhibit  "A";  that  the  defendant  first  above  named 
and  the  defendant  second  above  named  sold  whiskey  and  gin 
which  is  intoxicating  liquor  as  defined  by  Title  II  of  the  "Na- 
tional Prohibition  Act",  on  the  premises  described  in  Para- 
graphs IV  of  this  bill  in  equity,  said  sales  being  made  to 

on  the  same  premises  described  in 

Paragraphs  IV  of  this  bill  in  equity  and  said  person  herein 
named  who  made  said  purchases  from  the  defendant  first  above 
named  and  the  defendant  second  above  named  in  this  bill  has 


FORMS  127 

'  made  affidavit  setting  forth  the  particulars  of  said  sales  and 
which  said  affidavit  is  attached  to  this  bill  and  made  a  part 
hereof  and  said  affidavit  is  marked  for  identification,  Exhibit 

The  plaintiff  is  further  informed  and  verily  believes  and 
therefore  alleges  on  information  and  belief,  that  the  said  prem- 
ises are  equipped  with  furniture  and  glassware,  which  is  appro- 
priate onlj'  for  use  in  the  handling  and  sale  of  intoxicating 
liquor,  and  that  the  defendant  first  above  named  sold  whiskey 
and  intoxicating  liquor  as  defined  by  the  "National  Prohibition 
Act"  to  divers  other  persons  on  divers  other  daj's  both  before 
and  subsequent  to  the  sale  of  intoxicating  liquor  which  is  set 
forth  in  the  said  affidavit  known  as  Exhibit  "A,"  which  is  at- 
tached to  this  bill. 

VII.  The  plaintiff  is  informed  and  verily  believes  and 
therefore  alleges  on  information  and  belief,  that  unless  re- 
strained and  forbidden  by  the  injunction  of  this  Honorable 
Court,  the  said  defendants  will  continue  in  the  futui-e  to  keep, 
maintain,  and  use  said  premises,  and  assist  in  maintaining  and 
using  the  same  as  a  place  where  intoxicating  liquor  is  manu- 
factured, sold,  kept,  or  bartered,  in  violation  of  Title  II  of  said 
"National  Prohibition  Act,"  and  as  common  and  public  nui- 
sance as  defined  in  Section  21  of  said  Title. 

VIII.  The  plaintiff  is  informed  and  believes  and  charges 
the  fact  to  be  that  the  defendant  first  above  named,  who  is  the 
owner  and  proprietor  of  the  business  conducted  on  said  prem- 
ises, threatens  to  and  is  about  to  create  a  common  and  public 
nuisance,  similar  to  the  nuisance  described  in  this  bill,  in  an- 
other place  and  places  in  the  Southern  District  of  Illinois 
Northern  Division,  and  complainant  verily  believes  he  will 
carry  out  his  said  threat,  unless  restrained  by  an  injunction  of 
tliis  Court. 

IX.  Forasmuch,  therefore  as  plaintiff  has  no  r(>medy  in 
the  premises,  except  in  a  Court  of  Equity,  and  to  tlie  end  that 
it  may  obtain  from  this  Honorable  Court  the  relief  to  which 
it  is  entitled  by  riglit  and  equity,  and  pursuant  to  the  provisions 
of  Section  22  of  Title  TI  of  said  "National  Prohibition  Act,"  it 
respectfully  prays  that  the  above  named  defendants,  and  each 
of  them,  be  directed,  full,  true  and  perfect  ansAver  to  make  to 
this  bill  of  complaint,  l)iil  not  under  oath,  the  answer  under 
oath  of  each  of  them  being  hereby  expressly  waived,  and  that 
the  said  defendants,  and  each  of  tliem,  their  agents,  servants, 
subordinates,  and  employees,  and  each  and  every  one  of  them, 
be  enjoined  and  restrained  from  using,  nuiinlainiug  jmd  assist- 


128  FORMS 

ing  in  using  and  maintaining  said  premises  as  a  place  where 
intoxicating  liquor  is  manufactured,  sold,  kept,  or  bartered,  in 
violation  of  Title  II  of  said  "National  Prohibition  Act." 

The  plaintiff  further  prays  that  this  Honorable  Court  shall 
issue  its  process  directed  to  the  United  States  Marshal  for  the 
Southern  District  of  Illinois,  commanding  him  forthwith  sum- 
marily to  abate  said  public  and  common  nuisance  now  existing 
upon  said  premises,  and  for  that  purpose  to  take  possession  of 
said  premises  and  to  close  the  same  and  to  take  possession  of 
all  liquor,  fixtures,  and  other  property  now  used  on  said  prem- 
ises in  comiection  with  the  violation  constituting  said  nuisance, 
and  to  remove  the  same  to  a  place  of  safe-keeping  to  abide  the 
further  order  or  this  Court. 

The  plaintiff  further  prays  that  this  Honorable  Court  shall 
enter  a  decree  directing  that  all  the  intoxicating  liquor  now 
on  said  premises  shall  be  destroyed,  or,  upon  the  application  of 
any  United  States  Attorney,  shall  be  delivered  to  such  depart- 
ment or  agency  of  the  United  States  Grovernment  as  he  shall 
designate,  for  medicinal,  mechanical,  or  scientific  uses,  or  that 
the  same  shall  be  sold  at  private  sale  for  such  purpose  to  any 
person  having  a  permit  to  purchase  liquor,  and  that  the  pro- 
ceeds thereof  be  converted  into  the  Treasury  of  the  United 
States,  as  provided  in  Section  27  of  Title  II  of  said  "National 
Prohibition  Act." 

The  plaintiff  further  prays  that  this  Honorable  Court  shall 
forthwith  issue  a  temporary  writ  of  injunction  restraining  all 
of  the  defendants  herein  named  from  conducting  or  permitting 
the  continuance  of  said  nuisance,  and  shall  order  that  no  liquor 
shall  be  sold,  manufactured,  bartered,  or  stored  in  said  premises 
or  any  part  thereof  until  the  conclusion  of  the  trial  in  this  case ; 
and  that  said  temporary  injmiction  restrain  the  defendants, 
and  each  of  them,  their  agents,  servants,  subordinates,  and  em- 
ployees, and  all  other  persons,  from  removing  or  in  any  way 
interfering  with  the  liquor  or  fixtures,  or  other  things,  used  in 
connection  with  the  violation  of  the  "National  Prohibition 
Act." 

The  plaintiff  further  prays  that  this  Honorable  Court  shall 
enter  a  decree  directing  that  no  intoxicating  liquor  as  defined 
in  Title  II  of  said  "National  Prohibition  Act"  shall  be  manu- 
factured, sold,  bartered,  or  stored  in  said  premises,  or  any  part 
thereof,  and 

That  said  premises  shall  not  be  occupied  or  used  for  one 
year  after  the  date  of  said  decree,  and  in  the  event  that  it 
appears  that  the  owner  of  said  premises  had  knowledge  or  rea- 


FORMS  129 

SOU  to  believe  that  the  same  were  occupied  or  used  iu  violation 
of  the  provisious  of  Section  21  of  Title  II  of  said  "National 
Prohibition  Act,"  and  suffered  the  same  to  be  so  occupied  or 
used,  that  this  Honorable  Court  shall  enter  a  decree  impressing 
a  lien  upon  said  premises,  directing  that  the  same  be  sold  to 
pay  all  costs  and  fines  that  may  be  assessed  or  imposed  against 
the  person  or  persons  found  guilty  of  maintaining  such  nui- 
sance. 

The  plaintiff  further  prays  that  an  injunction  in  personam 
be  issued  and  granted  by  this  Honorable  Court  against  the 
defendant  first  above  named,  being  the  person  who  is  the  owner 
and  proprietor  of  the  business  conducted  on  said  premisees, 
enjoining  and  restraining  him  from  manufacturing,  selling, 
bartering,  or  storing  any  intoxicating  liquor  contrary  to  the 
provisions  of  the  "National  Prohibition  Act,"  at  any  place 
within  the  Southern  District  of  Illinois,  Northern  Division. 

The  plaintiff  further  prays  that  this  Honorable  Court  shall 
grant  such  other  and  further  relief  in  the  premises  as  may  be 
just  and  equitable  and  as  to  your  honor  shall  seem  just. 

MAY  IT  PLEASE  YOUR  HONOR  furthermore  to  grant 
unto  this  plaintiff*  not  only  the  writs  of  injunction  permanent 
and  temporary,  but  also  writs  of  subpoena  to  be  directed  to  the 
said  defendants commanding  them  and 

(Name  of  defendants) 

each  of  them  to  appear  and  make  answer  to  this  bill  of  com- 
plaint (but  not  under  oath,  which  is  hereby  expressly  waived), 
and  abide  and  perform  such  order  and  decree  in  the  premises 
as  to  this  Court  shall  seem  just  and  proper  as  required  by  the 
principles  of  equity  and  good  conscience. 

UNITED  STATES  OF  AMERICA, 

Complainant. 
By 

United    States    Attorney    for    the    Southern 
District  of  Illinois. 

VERIFICATION. 

UNITED  STATES  OF  AMERICA, 
SOUTHERN  DISTRICT  OF  IL- 
LINOIS, NORTHERN  DIVI- 
SION. 

being  duly 

(Name  of  District  Attorney  or  As.slstant) 

sworn,  deposes  and  says  that  he  is  Assistant  United  States  At- 
torney for  the  Sonliicrn  District  of  Illinois,  and  is  in  charge  of 


■ss. 


130  FORMS 

this  action.  Deponent  has  read  the  foregoing  bill  of  complaint, 
knows  the  contents  thereof,  and  same  is  true  of  his  own  knowl- 
edge, except  as  to  those  matters  therein  stated  to  be  alleged 
upon  information  and  belief,  and  as  to  those  matters  he  believes 
it  to  be  true. 

Assistant    United    States    Attorney    for    the 
Southern  District  of  Illinois. 

Subscribed  and  sworn  to  this day 

A.  D 


SUPPORTING  AFFIDAVIT 

IN    THE   DISTRICT    COURT    OF    THE    UNITED    STATES 

FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION 


At  the Term  thereof,  A.  D.  19 , 

UNITED  STATES  OF  AMERICA  ^ 

IN  EQUITY. 


(Name  of  defendants) 

United  States  of  America,  South- 
ern District  of  Illinois,  Northern    }-ss. 
Division 

,  being  duly  sworn,  on  oath  deposes 

(Name  of  deponent) 

and  says  that  he  is  now  and  was  at  all  times  hereinafter  men- 
tioned an  Agent  acting  under  the  authority  of  the  Commis- 
sioner of  Internal  Revenue  of  the  United  States ; 

That  on  certain  date  at  certain  hour,  affiant,  together  with 
entered  the  premises  here- 
inafter called  said  premises,  located  at 

being  the  ground  floor  of  a  brick  building,  situated  on  the  fol- 
lowing described  premises: 

(Legal  description  of  premises) 

That  said  premises  are  fitted  with  a  bar  and  glassware  as 

a  regular  saloon,  and  that,  on  this  occasion,  affiant  and 

each  purchased  from  defendant, 

one  drink  of  whiskey 

and  one  drink  of  gin,  which  each  consumed,  and  for  which  each 


FORMS  131 

paid  defendant, ,  $1.50.     On  this 

occasion, purchased  from  defendant, 

,  a  bottle  of  gin,  for  which 

paid  defendant, 

,  $10.     This  bottle  of 

gin  vras  taken  from  a  package  containing  six  bottles  similar 
in  appearance  and  size. 

Affiant  further  says  that  on  certain  date  at  certain  hour, 
affiant  entered  said  premises  and  purchased  from  defendant 

two  drinks  of  whiskey,  for 

which  affiant  paid  defendant $1.00. 

Affiant  further  says  that  he  has  drmik  whiskey  and  spir- 
ituous liquor  more  than  ten  times  during  the  past  year  and  at 
frequent  intervals  theretofore,  and  is  familiar  with  their  taste 
and  smell,  and  knows  that  they  contain  alcohol,  and  that  affiant 
can,  on  tasting  a  whiskey  or  other  spirituous  liquor,  form  a 
judgment  as  to  whether  or  not  it  contains  more  than  one-half 
of  one  per  cent  of  alcohol  by  volume  and  its  fitness  for  bever- 
age purposes;  that  basing  his  opinion  on  his  experience  affiant 
further  says  that  the  liquor  above  mentioned  drunk  by  him 
was  spirituous  liquor,  commonly  called  whiskey,  containing 
more  than  one-half  of  one  per  cent  of  alcohol  by  volume  and  fit 
for  beverage  purposes;  and  that  the  gin  mentioned  above  was 
a  spirituous  liquor,  commonly  called  gin,  containing  more  than 
one-half  of  one  per  cent  of  alcohol  by  volume  and  fit  for  bev- 
erage purposes. 

Affiant  further  says  that  he  has  made  inquiry  and  has  exam- 
ined the  records  and  files  in  the  office  of  the  Recorder  of  Deeds 

of County,   State,  and 

that  the  owners  of  the  above  described  premises  are 

and ,  of 

City 


State 
Further  affiant  saith  not. 


Subscribed  and  swoi-n  to  before  me  this day 

of ,  A.  D.  192... 


Clerk  of  the  District  Court  of  the  United  States 
for  the  Southern  District  of  Illinois. 


132  FORMS 

n. 

ORDER  FOR  TEMPORARY  WRIT  OF  INJUNCTION. 

UNITED  STATES  OF  AMERICA 
STATE  OF  ^^^" 

IN   THE   DISTRICT    COURT    OF    THE    UNITED    STATES 

FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION 

UNITED  STATES  OF  AMERICA,  ] 
Complainant, 
V.  !-  IN  EQUITY. 


(Name  of  defendants  here) 

And  now  on  this day  of 

A.  D.  192.  .  .,  this  cause  comes  on  to  be  heard  upon  the  Bill  of 
Complaint  heretofore  filed  in  the  office  of  the  Clerk  of  this 

Court,  and  upon  the  Affidavit  of , 

and  the  Affidavit  of ,  duly  filed 

in  open  Court ;  and  it  appearing  to  the  satisfaction  of  the  Court, 
by  inspection  of  the  Bill  of  Complaint  and  said  Affidavits  and 
otherwise,  that  a  nuisance  exists  as  described  in  the  said  Bill 
of  Complaint,  on  the  premises  therein  mentioned,  it  is 

ORDERED,  That,  pending  the  final  hearing  and  deter- 
mination of  this  application  and  entry  of  an  order  thereon,  the 
defendants  above  named,  their  agents,  servants,  and  employees 
are  restrained  and  enjoined  from  manufacturing,  selling,  or 
bartering  any  intoxicating  liquor,  as  defined  in  Section  1  of 
Title  II  of  said  "National  Prohibition  Act,"  upon  the  premises 
described  in  the  Bill  of  Complaint,  and  from  removing  or  in 
any  way  interfering  with  liquor  or  fixtures  or  other  things  upon 
said  premises,  used,  kept,  or  maintained  in  connection  with  the 
manufacturing,  sale,  keeping  or  bartering  of  such  liquor,  and 
from  conducting  or  permitting  the  continuance  of  a  common 
and  public  nuisance  upon  said  premises. 


United  States  District  Judge. 


FORMS  133 

m. 

TEMPORARY  WRIT  OF  INJUNCTION. 

UNITED  STATES  OF  AMERICA 
STATE  OF "^  ^^' 

IN   THE   DISTRICT    COURT    OF    THE   UNITED    STATES 

FOR  THE  SOL'THERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION 


UNITED  STATES  OF  AMERICA, 
Complainant, 


(Name  of  defendants  here) 

Defendants. 


IN  EQUITY. 


To ,  defendants  herein,  and  to  their 

(Name  of  defendants) 

agents,  servants,  assigns,  trustees  and  employees  and  all  others 
to  whom  these  presents  shall  come,  GREETING : 

KNOW  YE,  That  in  the  above  entitled  cause  a  petition  for 
the  issuance  of  a  temporary  writ  of  injunction  has  been  duly 
filed,  and  the  said  petition  upon  due  consideration  has  been  by 
the  Court  granted  and  such  injunction  issued. 

AND  THEREFORE,  You  and  each  of  you,  whether  indi- 
vidually or  in  combination  among  yourselves  or  with  others, 
are  hereby  restrained,  pending  the  hearing  and  determination 
of  this  cause,  from  manufacturing,  selling  or  bartering  any  in- 
toxicating liquor  as  defined  in  Section  1  of  Title  II  of  said 
"National  Prohibition  Act,"  upon  the  premises  hereinafter 
described,  and  from  removing  or  in  any  way  interfering  with 
the  liquor  or  fixtures  or  other  things  upon  said  premises  used, 
kept,  or  maintained  in  connection  with  the  manufacture,  sale, 
keeyjing,  or  bartering  of  the  liquor,  and  from  conducting  or 
permitting  the  continuance  of  a  common  public  nuisance  upon 
the  said  premises,  which  are  described  as  follows: 

Give  Legal  Description  of  Premises  Here. 

WITNESS  my  hand  and  the  seal  of  the  Clerk  of  the  United 
States  District  Court,  Southern  District  of  Illinois,  Northern 
Division,  this day  of ,  A.  D.  19.  . .  . 

(Month) 

Clerk. 


134  FORMS 

IV. 

MOTION  TO  DISMISS  BILL  OF  COMPLAINT. 

IN   THE   DISTRICT    COURT    OF    THE    UNITED    STATES 

FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION 

UNITED  STATES  OF  AMERICA, 

Plaintiff, 

^-  ^  IN  EQUITY. 


(Name  of  defendants  here) 

Defendants. 


MOTION  TO  DISMISS. 

Now  comes and  defendants  in  the 

(Name  of  defendants  here) 
above  entitled  cause,  and  move  the  Court  to  dissolve  the  tem- 
porary Writ  of  Injunction  issued  on and  to 

(Month,  day  year) 
dismiss  said  cause,  and  that  they  and  each  of  them  take  the 
costs  in  this  suit  incurred,  for  the  following  reasons : 

1. 
Because  the  bill  of  complaint  filed  herein  states  no  facts 
entitling  the  complainant  to  the  relief  prayed  for  therein. 

2. 

The  complaint  does  not  charge  that  the  premises  which  are 
charged  in  said  complaint  to  be  a  public  and  common  nuisance 
either  are  in  such  a  place  or  is  such  a  place  as  is  described  in 
Section  21,  Title  II,  of  the  Prohibition  Act. 

3. 
There  is  no  sufficient  allegation  in  the  bill  of  complaint 
that  the  premises  therein  described  and  which   said  bill   of 
complaint  seeks  to  have  declared  a  public  and  common  nui- 
sance, are  within  the  jurisdiction  of  the  Court. 

4. 
No  facts  are  stated  in  said  complaint  showing  that  the 
premises  described  in  said  complaint,  is  a  place  where  intoxi- 
cating liquor  is  sold,  kept  or  bartered,  in  violation  of  the  pro- 
visions of  the  National  Prohibition  Act,  and  the  affirmation  in 
said  complaint  in  that  respect,  is  mere  opinion  and  conclusion 
of  the  pleader,  and  is  not  such  a  specific  statement  of  facts  as 
entitled  the  complainant  in  a  Court  of  Equity,  to  any  equitable 
relief. 


FORMS  135 

5. 
Paragraph  VI  of  the  complaiut,  wherein  it  is  attempted  to 
be  charged  that  said  premises  are  used  and  maintained  as  a 
place  where  intoxicating  liquor  is  sold,  kept  or  bartered  in 
violation  of  the  provisions  of  said  title,  is  averred  in  said  com- 
plaint on  information,  and  belief,  and  nothing  is  disclosed 
either  by  said  complaint  or  by  the  oath  attached  thereto,  or  the 
affidavits  filed  in  connection  therewith,  which  conclusively  show 
to  this  Court  that  said  premises  M'ere  used  and  maintained  as  a 
place  where  intoxicating  liquor  is  sold,  kept  or  bartered  in  vio- 
lation of  the  provisions  in  said  Title. 

6. 
It  affirmatively  appears  from  said  Bill  of  Complaint  that 
the  complainant  was  a  party  to  said  supposed  sale  of  liquor, 
and  was  a  purchaser  thereof,  and  was  and  is  particeps  criminis 
in  the  alleged  transaction  about  which  the  complainant  seeks 
equitable  relief,  and  therefore,  complainant  does  not  come  into 
a  Court  of  Equity  with  clean  hands,  nor  does  he  do  equity,  and 
is  not  entitled  to  the  relief  prayed  for  in  said  complaint. 

7. 
Because  complainant  seeks  to  require  the  defendant  to 
answer  as  to  the  truthfulness  of  the  charges  in  said  complaint 
alleged,  which,  if  sufficiently  averred  and  proved,  constitute  a 
crime  under  the  laws  of  the  United  States,  and  the  effect  of 
said  complaint,  if  permitted  to  stand,  prior  to  a  conviction  of 
the  defendants  (Name  defendants  here),  of  the  crime  attempted 
to  be  charged  in  said  complaint,  are  an  infringement  upon  their 
constitutional  rights  in  this,  that  said  Court  of  Equity  ruling 
said  defendants  to  answer  as  to  the  truthfulness  of  the  allega- 
tions in  said  complaint,  requires  said 

(Name    defendants   here) 
to  be  witnesses  against  themselves,  contrary  to  the  provisions 

of  the  Constitution  of  the  United  States,  and  the  effect  must 
necessarily  be,  either  to  suspend  the  prosecution  of  the  said 
defendants for  the  crime  attempted 

(Name  defendants  here) 
to  be  charged  in  the  comphunt  aforesaid,  or  to  suspend  the 
relief    prayed    foi-    in    said    complaint    until    said    defendants 

are  convicted  of  the  crime  attempted 

(Name  defendants  here) 
to  be  cliai-gcd  in  said  Hill  of  Complaint. 

8. 
The   complaint    in    Hi  is  cause   is   prematurely   filed    unless 
there  has  already  been  a  convici ion  of  said 

(Name  defendants  here) 
of  the  crime  attemi)ted  to     he     charge  d  in     said     complaint. 


136  FORMS 

There  is  nothing  in  the  National  Prohibition  Law  which  author- 
izes a  Court  of  Equity  to  grant  the  relief  prayed  for  in  said 
complaint,  prior  to  a  conviction  of  some  person,  of  the  manu- 
facture or  sale  or  bartering  of  said  intoxicating  liquor  on  said 
premises,  contrary  to  the  provisions  of  said  National  Prohibi- 
tion Law. 

9. 

That  there  is  insufficiency  of  fact  to  constitute  a  valid  cause 

of  action  in  Equity  against  either  the  defendants 

..  (Name  defendants  here) 

10. 

That  said  Sections  Twenty-one  and  Twenty-two  are  uncon- 
stitutional in  this,  that  they  go  beyond  and  are  broader  in 
effect  than  the  rights  and  powers  granted  Congress  in  and  by 
the  Eighteenth  Amendment  to  the  Constitution  of  the  United 
States. 

11. 

Because  the  Court  was  without  authority  to  issue  a  tem- 
porary Writ  of  Injunction  against  these  defendants,  without 
a  notice  to  them  and  because  the  temporary  Writ  of  Injunction 
issued  in  this  case  is  broader  in  effect  than  permitted  by  Sec- 
tion 22  of  the  National  Prohibition  Act,  and  because  Section  22 
of  the  National  Prohibition  Act  in  no  manner  repeals  the  Act 
of  Congress  approved  October  15,  1914,  commonly  entitled  the 
"Clayton  Act,"  under  which  said  last  named  act  this  court 
acquires  its  authority  in  the  matter  of  the  insurance  of  injunc- 
tions. 


Solicitor  for  Defendants. 


FORMS  137 

V. 

ANSWER  TO  BILL  OF  COMPLAINT. 

IN    THE   DISTRICT    COURT    OF    THE    UNITED    STATES 

FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION 

UNITED  STATES  OF  AMERICA, 

Plaintife, 

V. 


(Name   of  defendants  here) 

Defendants. 


IN  EQUITY. 


ANSWER  TO  BILL  OF  COMPLAINT. 

TO  THE  HONORABLE ,  JUDGE 

OF  THE  DISTRICT  COURT  OF  THE  UNITED  STATES  FOR 
THE  SOUTHERN  DISTRICT  OF  ILLINOIS  NORTHERN 
DIVISION. 

The  ANSWER  of and 

to  the  Bill  of  Complaint  filed  herein. 

These  defendants,  and  each  of  them,  now  and  at  all  times 
hereafter  saving  and  reserving-  unto  themselves  all  benefits 
and  advantage  of  exception  or  otherwise  that  can  or  may  be 
had  or  taken  to  the  many  errors,  uncertainties  and  other  im- 
perfections in  said  Bill  of  Complaint  contained,  for  answer 
thereto,  or  to  so  much  thereof  as  these  defendants  are  advised 
is  material  or  necessary  for  them  or  either  of  them  to  make 
answer  unto,  they,  these  defendants,  severally  answering,  say : 

I. 

The  defendant, ,  denies  that  he  is 

the  owner  and  proprietor  of  the  business  conducted  on  the 
premises  described  in  the  Bill  of  Complaint. 

II. 

The  defendant, admits  that  he  is 

the  holder  of  a  license  issued  by  the  City  of , 

to  operate  a  soft  drink  parlor  on  said  premises,  and  neither 
admits  nor  denies  that  he  is  the  bartender  at  said  premises,  but 
demands  strict  proof  thereof. 

III. 

The  defendant, ,  denies  that  on 

certain  date,  at  about  certain  hour,  he  sold  a  drink  of  whiskey, 
and  a  drink  of  gin,  to  one ,  and  one 


138  FORMS 

,  or  that  he  received  the  sum  of  one 

dollar  and  fifty  cents  from  them,  or  either  of  them,  or  that  on 

this  occasion  he  sold  to  the  said a  bottle 

of  gin  and  received  therefor  the  sum  of  ten  dollars,  or  that  he 
did  at  that  time  and  place  own  or  possess  any  gin  on  said 
premises,  and  hereby  specifically  denies  that  he  did  aver,  at 
any  time  or  place,  sell  any  whiskey  or  gin  or  offer  to  sell  any 
whiskey  or  gin  or  any  other  intoxicating  liquor  to  either  the 
said or  the  said 

IV. 

The  defendant,  ,  hereby  denies  that 

on  certain  date  he  sold  to  one two  drinks 

of  whiskey  or  that  he  received  from  the  said , 

one  dollar,  and  denies  that  on ,  lie 

sold  to ,  a  drink  of  gin  or  received  from 

him  the  sum  of  seventy-five  cents,  and  hereby  specifically  denies 
that  he  did  ever,  at  any  time  or  place,  sell  any  whiskey  or  any 
gin  to  the  said ,  or  the  said 


These  defendants,  further  answering,  deny  that  the  prem- 
ises described  in  the  Bill  of  Complaint  are  used  or  maintained 
as  a  place  where  intoxicating  liquor,  as  defined  by  Section  One 
Of  Title  II  of  the  National  Prohibition  Act,  is  manufactured, 
sold  repeatedly,  kept  or  bartered,  in  violation  of  the  provisions 
of  said  Title,  or  that  said  premises  are  a  public  and  common 
nuisance. 

VI. 

These  defendants,  and  each  of  them  further  answering, 
deny  that  the  plaintiff  is  entitled  to  the  relief,  or  any  part 
thereof,  in  said  Bill  of  Complaint  demanded,  and  pray  the  same 
advantage  of  this  bill,  as  if  they,  and  each  of  them,  had  pleaded 
to  the  said  Bill  of  Complaint,  and  they  and  each  of  them  pray 
that  they  may  be  now  dismissed  with  their  reasonable  costs  and 
charges  in  this  behalf  most  wrongfully  sustained. 


Solicitor  for  Defendants. 


FORMS  139 

VI. 
ORDER  FOR  PERMANENT  INJUNCTION. 

IX    THE   DISTRICT    COURT    OF    THE   UNITED    STATES 

FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION 

At  the Term  thereof,  A.  D.  19 

UNITED  STATES  OF  AMERICA, 

Plaintiff, 

^-  ^m  EQUITY. 


(Name  of  defendants   here) 

Defendants. 


This  cause  coming  on  to  be  heard  upon  the  Petition  of 

,  filed  in  this  cause  on  the 

day  of ,  f or  the  purpose  of  permitting 

to  rent  the  premises  hereinafter  men- 
tioned and  described  for  legitimate  purposes ;  and  the  Court 
having  examined  the  said  Petition  and  being  fully  advised  in 
the  premises  finds  that  the  prayer  of  said  Petition  should  be 

granted  ;  and  the  Court  further  finds  that  the  said 

was  and  is  a  party  defendant  to  the  above  entitled  cause  and  is 
bound  by  and  by  any  and  all  orders  that  may  be  had  an  entered 
in  the  proceeding  the  same  as  though  he  had  been  served  more 
than  twenty-one  days  prior  to 

THEREFORE,  IT  IS  ORDERED,  ADJUDGED  AND  DE- 
CREED by  the  Court  that be,  and  it 

is  hereby  permitted  to  rent  to the 

following  described  premises,  to-wit: 

(Give  Legal  Description  of  Premises  Here) 
for  the  purpose  of  storage  and  storing  of  lawful  and  legitimate 
merchandise,  which  shall  not  in  any  manner  be  in  violation  of 
any  law,  rule  or  regulation  of  the  United  States  of  America  or 
for  any  purpose  which  could  be  construed  as  selling,  bartering 
or  storing  in  said  premises  or  any  part  thereof  any  liquor  con- 
taining more  than  one-half  of  one  per  cent  of  alcohol  by  vol- 
ume as  mentioned  and  specified  in  said  decree ;  and  the  said 
decree  be  modified  to  such  extent  and  to  such  extent  only;  pro- 
vided, however,  that  no  bar,  saloon  or  soft  drink  parlor  (so 
called),  fixtures  or  equipment  slwill  be  used  or  allowed  to  re- 
main or  be  in  said  jjremises  during  tlie  period  of  the  injunction 


140  FORMS 

here  ;  and  provided  further  that  said 

shall  file  in  this  Court  a  bond  in  the  sum  of  One  Thousand  Dol- 
lars, to  be  approved  by  the  Court,  conditioned  upon  the  faith- 
ful compliance  with  the  decree  of  injunction  herein  (except  to 
the  extent  the  same  is  hereby  modified)  or  any  orders  entered  or 
to  be  entered  in  this  cause,  which  said  bond  is  now  offered,  filed 
and  hereby  approved. 

IT  IS  FURTHER  ORDERED,  ADJUDGED  AND  DE- 
CREED that  the  said  permanent  injunction  issued  under  said 
decree  shall,  as  well  as  the  other  defendants  in  this  cause,  and 

does  hereby  enjoin  the  said ,  his  servants, 

agents,  subordinates  and  employees,  from  selling,  bartering  or 
storing  in  said  premises  or  any  part  thereof  any  liquor  contain- 
ing more  than  one-half  of  one  per  cent  of  alcohol  by  volume 
and  from  maintaining  said  premises  as  a  common  and  public 
nuisance. 

IT  IS  FURTHER  AGREED  that  the  said  decree,  dated 
(month,  day,  year),  shall  remain  in  full  force  and  effect  except 
as  modified  by  this  decree. 


Judge. 

VII. 
PERMANENT  INJUNCTION. 

IN   THE   DISTRICT    COURT    OF    THE    UNITED    STATES 
FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION 

At  the Term  thereof,  A.  D.  19 

UNITED  STATES  OF  AMERCIA,  1 

Plaintiff, 

V. 


(Name  of  defendants  here) 

Defendants. 


IN  EQUITY. 


WRIT  OF  INJUNCTION. 

To  (Name  of  defendants),  and  (Name  of  corporation),  a 
corporation,  their  servants,  agents,  subordinates,  employees 
and  each  and  every  one  of  them,  and  all  persons  acting  in  aid 
of,  or  in  connection  with  them,  or  any  of  them,  and  all  other 
persons  whomsoever, 


FORMS  141 

GREETING : 

WHEREAS,  THE  UNITED  STATES  OF  AMERICA, 
plaintiff  in  the  above  entitled  cause,  has  filed  its  bill  in  Equity 
in  the  District  Court  of  the  United  States  for  tlie  Southern  Dis- 
trict of  Illinois  and  the  Nortliern  Division  thereof,  and  has  ob- 
tained an  allo"\vance  of  an  injunction  against  the  above  named 
defendants  as  prayed  for  in  said  bill : 

NOW,  THEREFORE,  we,  having  regard  to  the  matters  in 
said  bill  contained,  do  hereby  command  and  strictly  enjoin  yoii, 
the  said  (Names  of  defendants),  and  (Name  of  corporation),  a 
corporation,  your  servants,  agents,  subordinates,  and  em- 
ployees, and  each  and  every  one  of  you,  and  all  other  persons 
from  keeping,  selling  or  bartering  any  liquor  containing  more 
than  one-half  of  one  per  cent  of  alcohol  by  volume  upon  the 
following  described  premises : 

Give  legal  description  of  premises  here) 

and  from  maintaining  said  premises  as  a  common  and  public 
nuisance  as  defined  in  Section  Twenty-one  of  the  National  Pro- 
hibition Act;  and  from  using  or  occupjdng  or  permitting  said 
premises  to  be  used  or  occupied  for  any  purpose  whatever  for  a 
a  period  of  one  year  from  the  date  hereof,  or  until  the  further 
order  of  this  Court. 

HEREOF  FALL  NOT  under  penalty  of  the  law  thence 
ensuing. 

WITNESS  the  HONORABLE  ,  Judge 

of  the  District  Court  of  the  United  States  for  the  Southern 

District  of  Illinois,  this day  of 

A.  D.  19 .... ,  and  in  the year  of  the 

Independence  of  the  United  States  of  America. 


Clerk. 


142 


FORMS 


VIII. 

AMENDMENT  TO  BILL  OF  COMPLAINT. 

IN    THE   DISTRICT    COURT    OF    THE    UNITED    STATES 
FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION 

UNITED  STATES  OF  AMERICA, 

Complainant,      IN  EQUITY. 

^'  r  AMENDMENT  TO  BILL 

FOR  INJUNCTION. 


(Name  of  defendants  here) 

Defendants. 

Now  comes  (Name  of  U.  S.  Attorney),  United  States  At- 
torney in  and  for  the  Southern  District  of  Illinois,  leave  of 
Court  being  first  had  and  obtained  and  amends  the  Bill  of  Com- 
plaint heretofore  filed  in  this  cause  by  making  (Name  of  cor- 
poration), a  corporation  organized  and  doing  business  under 
the  laws  of  the  State  of  Illinois,  and  having  its  principal  office 
at  (Name  of  City,  County  and  State),  a  party  defendant  hereto. 

UNITED  STATES  OF  AMERICA. 

Complainant, 

By 


United  States  Attorney  for  the  Southern  District 
of  Illinois. 

IX. 
MOTION  TO  DISMISS  BILL. 


IN   THE   DISTRICT    COURT    OF    THE   UNITED    STATES 
FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION 


UNITED  STATES  OF  AMERICA, 

Plaintiff, 


(Name  of  defendants  here) 

Defendants. 


IN  EQUITY. 

BILL  FOR  INJUNCTION. 


NOW  COMES  (Name  defendants  here),  and  two  of  the 
defendants  in  the  above  entitled  cause,  and  moves  the  Court 
to  dismiss  the  Bill  of  Complaint  herein  for  the  following  rea- 
sons: 


FORMS  143 

1.  The  Bill  of  Complaint  does  not  state  facts  sufficient  to 
entitle  the  plaintiff  to  the  relief  prayed  for  or  any  part  thereof, 
there  being  no  Equity  in  the  Bill. 

2.  The  statements  or  allegations  in  the  Bill  are  vague, 
uncertain  and  indefinite. 

3.  The  said  Bill  of  Complaint  is  not  sufficient  in  law  to  be 
answered  unto. 

4.  The  allegations  or  statements  in  the  Bill  of  Complaint 
are  merely  conclusions  of  the  pleader. 

5.  Paragraphs  number  IV,  V,  VI,  VII,  and  VIII  are  not 
positive  and  direct  statements  as  required  by  the  rules  of  this 
Court,  but  on  the  contrary  all  matters  contained  in  said  para- 
graphs are  stated  upon  information  and  belief. 

6.  There  is  nothing  in  the  Bill  to  show  that  these  defend- 
ants had  knowledge  of  the  acts  charged  in  said  Bill  to  be  in 
violation  of  the  law  mentioned  in  said  Bill. 

7.  Said  Bill  contains  no  statement  or  allegation  that  these 
defendants  had  knowledge  or  reason  to  believe  that  the  prem- 
ises mentioned  in  said  Bill  were  occupied  or  used  for  the  sale 
of  liquor  contrary  to  the  provisions  of  the  Title  of  the  Act  men- 
tioned in  said  Bill. 

8.  Said  Bill  contains  no  statement  or  allegation  of  facts 
which  show  that  these  defendants  had  knowledge  or  reason 
to  believe  that  the  premises  mentioned  in  said  Bill  were  occu- 
pied or  used  for  the  sale  of  liquor  contrary  to  the  provisions  of 
the  Title  of  the  Act  mentioned  in  said  Bill. 

9.  Said  Bill  contains  no  statement  or  allegation  that  these 
defendants  committed  any  act  or  deed  in  violation  of  the  Na- 
tional Prohibition  Act  or  any  other  law. 

10.  Said  Bill  contains  no  statement  or  allegation  of  facts 
which  show  that  these  defendants  committed  any  act  or  deed 
in  violation  of  the  National  Prohibition  Act  or  any  other  law, 

11.  Said  Bill  contains  no  statement  or  allegation  that 
these  defendants  in  any  way  created,  maintained  or  was  in  any 
way  connected  with  or  party  to  the  creation  or  maintenance 
of  a  common  and  public  nuisance  mentioned  in  said  Bill. 

12.  Said  Bill  contains  no  statement  or  allegation  of  facts 
which  show  that  these  defendants  in  any  way  created,  main- 
tained or  was  in  any  way  connected  with  or  a  parly  to  the 
creation  or  maintenance  of  a  common  and  public  nuisance  as 
mentioned  in  said  Bill. 

13.  There  is  no  statement  or  allegation  in  said  Bill  charg- 
ing tliis  defendant  with  the  commission  of  any  wrong  or  un- 
lawful act  or  the  violation  of  any  law. 


144  FORMS 

14.  The  said  Bill  and  the  prayer  thereof  is  unjust  and  in- 
equitable towards  these  defendants  and  is  depriving  them  of 
their  property  and  property  rights  without  due  process  of  law. 

15.  And  for  other  reasons  which  will  be  urged  in  the 
hearing. 

WHEREFORE,  these  defendants  pray  that  the  Bill  of 
Complaint  herein  may  be  dismissed  and  that  they  may  be  dis- 
missed as  parties  defendant  thereto. 


Solicitor  for  Defendants. 


IN    THE   DISTRICT    COURT    OP    THE    UNITED    STATES 

FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION 

UNITED  STATES  OF  AMERICA,  ] 

Plaintiff,  | 
V.  1    IN  EQUITY. 

BILL  FOR  INJUNCTION. 


(Name  'defendants  here) 

Defendants. 


NOW  COMES and , 

(Name  defendants  here) 

two  of  the  defendants  in  the  above  entitled  cause  and  moves 
the  Court  to  dismiss  the  temoprary  injunction  granted  in  this 
cause  for  the  following  reasons : 

1.  These  defendants  had  no  notice  of  the  application  for 
such  injunction. 

2.  There  is  no  allegation  or  statement  in  the  Bill  or  any 
other  writing  filed  in  this  suit  stating  why  such  notice  could 
not  be  given. 

3.  There  are  no  facts  shown  by  Affidavit  or  by  the  Bill 
of  Complaint  herein  from  which  it  clearly  appears  that  imme- 
diate and  irreparable  loss  or  damage  will  result  to  the  appli- 
cant before  the  matter  can  be  heard  on  notice. 

4.  The  Bill  of  Complaint  herein  contains  no  Affidavit  or 
sworn  statement  sufficient  to  warrant  this  Court  in  granting  a 
temporary  injunction. 

5.  The  Affidavit  to  the  Bill  of  Complaint  herein  is  upon 
information  and  belief  and  is  not  sufficient  in  law  to  warrant 
the  Court  in  granting  such  temporary  injunction. 

WHEREFORE  these  defendants  pray  that  the  said  injunc- 
tion be  dismissed  and  dissolved. 


Solicitor  for  Defendants. 


GROUP  II. 

Forms  Used  to  Restrain  Collector  from  Collection  of  Tax, 
Under  Section  35,  Title  n,  Volstead  Act. 

I.  Petition  to  restrain  Collector  of  Internal  Revenue  in  cases 
where  property  has  been  seized  for  non-payment  of 
taxes. 

II.  Notice  of  Application  for  Injunction. 

III.  Certificate  of  Mailing. 

IV.  Order  for  Preliminary  hearing. 
V.  Preliminary  Injunction. 


146 


FORMS 


PETITION  TO  RESTRAIN  COLLECTOR  OF  INTERNAL 
REVENUE  FROM  SELLING  PROPERTY  LEVIED 
UPON  BY  WARRANT  OF  DISTRAINT  FOR  NON-PAY- 
MENT OF  TAX  AND  PENALTIES  UNDER  SECTION  35, 
TITLE  II,  OF  VOLSTEAD  ACT. 

IN   THE   DISTRICT    COURT    OF    THE    UNITED    STATES 

FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION 


(Name  of  Petitioner  here) 

Complainant, 


Name  of  Collector  here) 

Collector  of  Internal  Revenue  of 
the  United  States  for  the  First  In- 
ternal Revenue  Collection  District 
of  Illinois,  and 


IN  EQUITY. 

BILL  FOR  INJUNCTION. 


Deputy   Collector,    etc.) 

Defendants. 

II. 
TO  THE  HONORABLE ,  JUDGE  OF 

(Name  of  Judge) 

THE  DISTRICT  COURT  OF  THE  UNITED  STATES  FOR 
THE  SOUTHERN  DISTRICT  OF  ILLINOIS,  NORTHERN 
DIVISION,  IN  EQUITY: 

III. 
,  hereinafter  designated  as  com- 

(Name  of  complainant)  ■  n  •      +V> 

plainant,  a  resident  and  citizen  of  the  city  o± ,  m  tne 

^  (City) 

County  of ,  and  State ,  and  within 

(County)  (State)_ 

the  Southern  District  of  Illinois,  Northern  Division,  and  the 
First  Internal  Revenue  Collection  District  of  Illinois,  brings 

this,  his  Bill  of  Complaint,  against a  resident 

of  the  City  of ,  State  of 

Collector  of  Internal  Revenue  of  the  United  States  for  the 
First    Internal   Revenue    Collection   District    of    Illinois,    and 

a  resident  of  the  City  of 

in  the  County  of ,  and  State  of ,  and 

(City)  (County)  (State) 


FORMS  147 

the  Southern  District  of  Illinois,  Northern  Division,  (or  as  the 
case  may  be)  Deputy  Collector  of  Internal  Revenue  in  and  for 
the  First  Internal  Revenue  Collection  District  of  Illinois. 

IV. 

Complainant  noAv  coming  and  complaining,  shows  to  the 
Court  as  follows : 

1.  That  one   ,  as  Collector  of 

Internal  Revenue  for  the  First  Internal  Revenue  Collection 
District  of ,  acting  through  and  by  said 

(Name  of  state) 

,  as  Deputy  Collector  of  Internal  Revenue, 

(Xame  of  deputy) 

has  caused  to  be  assessed  against  this  complainant,  taxes  and 
penalties  for  alleged  violation  of  the  Internal  Revenue  Law  of 
the  United  States  and  is  proceeding  to  collect  the  same  under 
Section  5909  to  5930,  both  inclusive,  in  this: 

(a)  He  has  caused  to  be  assessed  against  this  complain- 
ant a  tax  in  the  sum  of  $3,000.00  for  carrying  on  the  business 
of  a  distiller  of  spirituous  liquor,  subsequent  to  January  16, 
A.  D.  1919. 

(b)  He  has  caused  to  be  assessed  against  this  complain- 
ant a  penalty  in  the  sum  of  $1,600.00  for  alleged  failure  of 
this  complainant,  as  he  alleged,  to  pay  distillers'  tax  and  for 
having  engaged  in  the  business  of  a  distiller  of  spirituous 
liquor  in  the in  said  district  and  at  the  said 

(Name  of  Olty) 

time  and  in  violation  of  the  Act  of  Congress  relating  to  Inter- 
nal Revenue,  approved  October  28th,  1919. 

(c)  He  has  caused  to  be  assessed  against  this  complain- 
ant an  additional  penalty  in  the  sum  of  $200.00  for  failure  to 
pay  said  taxes  and  penalties  upon  demand. 

(d)  He  has  caused  to  be  assessed  against  this  complain- 
ant an  additional  penalty  in  the  sum  of  $175.00  as  interest  on 
the  above  described  taxes  and  penalties. 

2.  That  said  tax  and  penalties  having  been  so  assessed 
against  this  complainant,  the  said  defendant,  said 

(Name  of  Collector) 

Collector  of  Internal  Revenue,  by  and  through  his  deputy, 
the  said ,  demanded  of  this  com- 

(Name  of  deputy) 

plainant  that  he  pay  said  taxes  and  penalties,  in  all  amount- 
ing to  the  sum  of  $4,975.00  and  that  on  the  6th  day  of  J\i\y, 
A.  D.  1921,  the  said  Collector  of  Internal  Revenue,  by  and 
through  his  deputy,  the  said   ,caused  to  be 

(N;ime  of  deputy) 

issued  and  delivered  to  tliis  complainant  a  notice  in  writing 
that  he,  the  said Deputy  Collector 


148  FORMS 

ds  aforesaid,  was  holding  a  warrant  of  distraint  against  this 
complainant  for  failure  to  pay  said  tax  nd  penlties  to  the 
amount  of  $4,975.00,  as  aforesaid,  and  that,  unless  the  said 
complainant  responded  to  this  notice  within  a  short  time  from 
the  6th  day  of  July,  A.  D.  1921,  said  warrant  of  distraint  would 
be  served  and  levied  and  the  said  Deputy  Collector  of  Internal 
Revenue,  said ,  now  threatens  and  gives  out 

(Name  of  deputy) 

that  he  w^ill  seize  and  sell  the  property  of  this  complainant  on 
said  warrant  of  distraint  to  collect  said  amount  of  tax  and 
penalties  from  this  complainant ;  and  this  complainant  fears 
that,  unless  restraint  and  enjoined  by  this  Honorable  Court 

from  so  doing,   the  said    Collector 

of  Internal  Revenue,  as  aforesaid,  acting  by  and  through  said 
,  as  aforesaid,  by  virtue  of  said  warrant,  as 

(Name  of  deputy) 

aforesaid,  will  seize  and  sell  the  property  of  this  complainant 
to  an  amoimt  sufficient  to  pay  said  alleged  tax  and  penalties. 

VI. 

That  this  complainant  has  not  at  anj'-  time  since  the  16th 
day  of  January,  A.  D.  1919,  been  engaged  in  the  business  of  a 
distiller  of  spirituous  liquor,  nor  has  he  violated  Section  35 
of  the  National  Prohibition  Act,  or  any  other  section  of  said 
Act,  nor  has  he  violated  Section  1001  or  Section  3244  of  the 
Revised  Statutes  of  the  United  States  or  any  other  section  of 
the  Revised  Statutes  of  the  United  States,  nor  has  he  been 
engaged  in  any  business  mentioned  in  Chapter  3,  relating  to 
special  taxes  of  the  Revenue  Laws  of  the  United  States,  nor 
has  he  violated  any  of  the  sections  of  the  Revised  Statutes 
of  the  United  States  relating  to  taxes. 

VII. 

This  complainant  admits  and  alleges  that  heretofore  on 
the  24th  day  of  October,  A.  D.  1920,  he  was  indicted  by  the 
Grand  Jury  of  the  United  States  District  Court,  in  and  for 
the  Southern  District  of  Illinois,  Northern  Division,  and  that 
in  and  by  said  indictment,  this  complainant  was  charged  with 
the  crime  of  unlawfully  making  and  fermenting  a  certain 
mash  fit  for  distillation  in  a  certain  building  not  then  and  there 
a  distillery  duly  authorized  by  law  and  with  having  possession 
of  forty  gallons  of  raisin  and  rye  mash  fit  for  distillation;  that 

the  case  of  the  United  States  v , 

has  not  been  set  down  for  trial  at  any  term  of  court  subse- 
quent to  the  returning  of  said  indictment ;  and  this  complain- 


FORMS  149 

aut  further  alleges  that  he  is  not  guilty  of  the  said  charges 
in  said  indictment ;  and  that  upon  a  trial  of  this  case  before 
a  jury  this  complainant  alleges  that  he  ^vill  be  found  not  guilty. 

VIII. 

This  complainant  further  alleges  and  states  the  fact  to  be 
that  the  said  indictment  ■which  was  returned  against  him  as 
aforesaid  is  the  only  basis  and  foundation  for  the  alleged 
assessment  of  tax  and  penalties  mentioned  in  paragraph  five 
hereof  as  (a),  (b),  (c)  and  (d),  and  this  complainant  has  not 
been  indicted  or  informed  against  otherwise,  or  otherwise 
charged  with  violation  of  the  Criminal  Law  of  the  United 
States  or  any  Internal  Kevenue  Law  or  regulation. 

IX. 

This  complainant  further  alleges  and  states  the  fact  to  be 
that  the  said  Collector  of  Internal  Revenue  and  his  deputy  are 
not  authorized  by  any  law  of  the  United  States  to  assess  said 
tax  or  impose  said  penalties  against  this  complainant  and  are 
not  authorized  by  any  law  of  the  United  States  to  seize  or  sell, 
either  the  personal  or  real  property  of  this  complainant  under 
said  warrant  of  distraint  or  otherwise,  as  he  threatens  to  do. 


That  insofar  as  any  Act  of  Congress  purports  or  attempts 
to  authorize  or  permit  said  Collector  of  Internal  Revenue  or 
his  deputies  to  assess  tax  or  penalties  against  this  complainant, 
or  to  seize  or  sell  the  property  of  this  complainant  in  payment 
thereof,  such  Acts  of  Congress  violate  the  Fifth,  Sixth, 
Seventh,  Eighth  and  Eighteenth  Amendments  of  the  Constitu- 
tion of  the  United  States,  and  are  void  and  of  no  effect. 

XI. 

This  complainant  further  alleges  that  said  Collector  of 
Internal  Revenue,  acting  by  and  througli  his  deputies,  has 
assessed  against  a  great  number  of  persons  other  than  this 
complainant,  to-wit ;  not  less  than  twenty-five  other  persons, 
taxes  and  penalties  similar  to  those  assessed  against  tliis  com- 
plainant, and  in  amounts  varying  from  at  least  Three  Hundred 
($.300.00)  Dollars,  to  several  Thousand  Dolhirs,  and  have  in- 
stituted proceedings  for  the  collection  of  the  same,  and  have 
issued,  or  are  about  to  cause  to  be  issued,  warrants  of  dis- 
traint, under  the  provisions  of  Section  5909  to  5930,  of  the 
United  States  Compiled  Statutes  of  1918,  for  the  seizure  and 


150  FORMS 

selling  of  the  real  and  personal  property  of  each  of  said  per- 
sons ;  that  as  to  each  of  said  persons,  said  Collector  of  Internal 
Revenue,  and  his  deputies,  are,  as  these  complainants  are  ad- 
vised and  belief  that  they  are  authorized  by  the  law  to  enforce 
the  payment  of  said  taxes  and  penalties,  by  seizure  and  sale 
of  the  property  in  said  warrants  of  distraint. 

This  complainant  further  alleges,  upon  information  and 
belief,  that  the  Collector  of  Internal  Revenue  is  not  financially 
able  to  respond  in  damages  for  the  value  of  the  property  of 
this  complainant  or  such  other  persons,  which  he  so  threatens 
to  seize  and  on  that  account,  this  complainant  is  without  an 
adequate  remedy  at  law  in  the  premises. 

This  complainant  further  alleges  that  a  multiplicity  of  suits 
will  be  avoided  by  reason  of  the  premises,  by  enjoining  and 
restraining  said  collection  of  said  alleged  taxes  and  penalties 
herein. 

XII. 

This  complainant  further  alleges  and  states  the  fact  to  be 
that  he  is  now  and  for  many  years  last  past  has  been  engaged 
in  the  business  of in  the  

(Name  of  business)  (Name  of  city) 

in  the  County  of and  State  of 

(Name  of  county)  (Name  of  state) 

at  and  within  the  said  district ;  that  he  is  the  owner  of  the 
following  described  real  estate : 

(Legal  description   of  real   estate   here) 

and  that  he  has,  in  addition  thereto  accumulated  personal 
property  of  considerable  value,  to-wit :  horses,  cattle,  hogs, 
farm  machinery,  implements  and  other  personal  property  used 
in  and  about  the  conducting  of  said  farm,  all  of  which  said 
property  is  and  has  been  for  many  years  last  past  in  the  said 
district ;  that  the  said  Collector  of  Internal  Revenue,  by  and 
through  said  Deputy  Collector  of  Internal  Revenue,  threatens 
and  gives  out  that  he  will,  by  said  warrant  of  distraint,  or 
otherwise,  for  such  alleged  taxes  and  penalties,  seize  upon  and 
sell  the  personal  and  real  property  of  this  complainant,  situated 
as  aforesaid ;  and  that  he  will  take  possession  of  said  farm, 
stock,  farm  machinery,  implements  and  equipment  used  in  and 
about  the  conducting  of  said  farm  and  sell  all  of  the  property 
of  this  complainant  under  said  warrant  of  distraint,  and  that 
thereb}^  this  complainant  will  be  deprived  of  his  home,  his 
business,  articles  of  personal  property  used  in  and  about  said 
business  and  his  business  will  suffer,  not  merely  the  loss  of 
the  value  of  said  property  described,  but  will  suffer  the  loss 


FORMS  151 

of  the  profits  of  said  business  bj-  reason  of  his  being  unable  and 
his  failure  to  continue  in  said  business  and  will  otherwise  be 
irreparably  damaged  in  the  premises. 

And  this  complainant  further  alleges  and  states  the  fact 
to  be  that  if  the  said  Collector  of  Internal  Revenue  or  his 
deputy  shall  seize  or  attempt  to  seize  any  of  the  property  of 
this  complainant,  they  will  thereby  put  a  cloud  upon  the  title 
thereof  and  greatly  harrass  and  embarrass  and  impoverish 
this  complainant  and  all  to  the  irreparable  injury  of  this  com- 
plainant. 

XIII. 

This  complainant  further  complaining,  further  alleges  and 
states  the  fact  to  the  Court  that  he  is  a  bona  fide  resident  of 
tlie ,  County  of ,  and  State 

(Name  of  city)  (Name  of  county) 

of ,  in  said  district,  and  is  residing  on  the  farm 

(Name  of  state) 

last  above  described  in  the  County  of 

ToAvnship  of  South  Moline,  State  of ,  with 

his  wife  and  two  children ;  that  he  is  permanently  located  at 
the  place  last  aforesaid  and  engaged  in  the  carrying  on  of  his 
said  business  as  a  farmer ;  and  that  if  liable  therefore,  for  the 
tax  and  penalties  so  assessed,  the  Government  of  the  United 
States  will  suffer  no  loss  by  preliminary  injunction  against 
said  Collector  of  Internal  Revenue  and  said  Deputy  Collector 
of  Internal  Revenue  as  aforesaid,  from  proceeding  in  the  exe- 
cution of  the  said  warrant,  until  the  further  order  of  tlie  Court 
in  the  premises. 

XIV. 

FORASMUCH  THEREFORE,  as  this  complainant  is 
wholly  remediless  in  the  premises  except  in  this,  your  Honor's 
Court  of  Equity,  where  such  matters  are  properly  chargeable 
and  relievable,  this  defendant  prays  that  a  writ  of  injunction 
issue  out  of  and  under  the  seal  of  this  Court,  enjoining  and 
restraining  said  defendant,  the  said  Collector  of  Internal  Reve- 
nue, and  the  Deputy  Collector  of  Internal  Revenue,  as  afore- 
said, and  every  person  acting  through  and  under  them,  from 
seizing  or  selling  the  property  of  this  complainant  to  enforce 
payment  of  said  tax  and  the  penalties  heretofore  described  or 
any  of  them,  and  that,  pending  the  termination  thereof,  there 
issue  of  this  Court,  its  preliminary  writ,  enjoining  and  restrain- 
ing said  defendants,  said  Collector  of  Internal  Revenue,  and 
said  Deputy  Collector  of  Internal  Revenue  and  every  person 
acting  through  and  under  them,  from  seizing  or  selling  the 
property  of  this  complainant   as  aforesaid,  and   llwil,  on   final 


152  FORMS 

hearing,  this  Court  may  decree  the  said  property  to  be  the 
property  of  this  defendant,  free  from  any  lien  or  claim  of  the 
United  States  for  tax,  and  that  the  cloud  on  the  title  of  said 
complainant  be  removed,  and  that  this  complainant  may  have 
such  other  and  further  relief  in  the  premises  which  the  nature 
and  circumstances  of  the  case  may  require  and  to  this  Court 
shall  seem  just  and  equitable ;  that  a  temporary  writ,  restrain- 
ing said  Collector  of  Internal  Revenue  and  the  said  Deputy 
Collector  of  Internal  Revenue  and  their  agents,  from  seizing 
the  property  of  this  complainant  or  levying  the  said  distraint 
warrant  upon  the  property  of  this  complainant  be  issued  by 
this  Court  to  said  defendant,  and  that  this  Court  would  set  a 
day  upon  which  it  will  hear  and  determine  the  right  of  this 
complainant  to  said  writ  of  injunction. 

And  this  complainant  prays  that  there  issue  out  of  this 
Court  a  subpoena  of  the  United  States  of  America,  directed 

to  said as  Collector  of  Internal  Revenue 

of  the  United  States,  for  the  First  Internal  Revenue  Collection 
District  of  Illinois,  therein  and  thereby  commanding  them  on 
a  certain  day  therein  to  be  named,  to  be  and  appear  before  this 
Honorable  Court,  and  then  and  there  answer  (but  not  under 
oath)  all  and  singular,  the  premises  and  to  stand  to  and  per- 
form and  abide  all  orders,  directions  and  decrees  as  may  be 
made  against  them  in  the  premises  and  such  as  shall  seem  meet 
and  agreeable  to  equity  and  good  conscience. 


FORMS 
VERIFICATION. 


153 


IN   THE   DISTRICT    COURT    OF    THE   UNITED    STATES 

FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION. 


(Name  of  complainant  here) 

Complainant, 


IN  EQUITY. 


(Name  of  collector  here) 

Collector  of  Internal  Revenue  of 
the  United  States,  for  the  First 
Internal  Revenue  Collection  Dis- 
trict of  Illinois,  and  (Name  of 
Deputy  Collector  here),  Deputy- 
Collector,  etc. 

Defendants. 

,  the  above  named  complainant, 

being  first  duly  sworn,  according  to  law,  on  his  oath  states, 
that  he  is  of  full  age  and  a  citizen  of  the  State  of  Illinois,  re- 
siding in  said  district,  that  he  has  heard  read  the  foregoing  bill 
of  complaint  and  has  signed  the  same ;  and  that  he  knows  the 
contents  of  the  same  and  the  matters  and  things  therein  stated 
to  be  true  of  his  own  knowledge,  except  as  to  the  matters  and 
things  therein  stated  to  be  upon  his  information  and  belief, 
and  that  as  to  matters  and  things  therein  stated  to  be  on  his 
information  and  belief,  he  believes  them  to  be  true. 


Subscribed  and  sworn  to  by  the  said 

this day  of  June,  A.  D.  1921. 

In  witness  whereof,  I  have  hereunto  subscribed  my  hand 
and  affixed  my  official  seal. 


Notary  Public. 


154 


FORMS 
II. 


NOTICE    OF   APPLICATION   FOR   INJUNCTION   TO   RE- 
STRAIN COLLECTOR. 

IN   THE   DISTRICT   COURT   OF   THE   UNITED   STATES, 

FOR  THE   SOUTHERN   DISTRICT   OF  ILLINOIS, 

NORTHERN  DIVISION. 


(Name  of  complainant  here) 

Complainant, 


IN  EQUITY 

BILL  FOR  INJUNCTION. 


(Name  of  collector  here) 

Collector  of  Internal  Revenue  of 
the  United  States  for  the  First 
Internal  Revenue  Collection  Dis- 
trict of  Illinois,  and  (Name  of 
Deputy  Collector  here).  Deputy 
Collector,  etc., 

Defendants. 

TO  THE  ABOVE  NAMED  DEFENDANTS : 

Take  notice  that  on  Saturday,  the  25th  day  of  June,  A.  D. 
1921,  at  the  hour  of  ten  o'clock  A.  M.,  or  as  soon  thereafter  as 
counsel  can  be  heard,  the  above  named  complainant  will  make 

application  to  the  Honorable  ,  Judge 

of  the  United  States  District  Court,  in  and  for  the  Southern 
District  of  Illinois,  Northern  Division,  at  the  court  room  of  the 
United  States  District  Court,  in  Springfield,  Illinois,  for  a  writ 
of  injmiction  in  the  above  entitled  cause,  to  enjoin  and  restrain 
you  and  each  of  you  from  seizing  and  selling  the  property  of 
this  complainant  on  any  distraint  warrant  to  enforce  payment 
of  taxes  and  penalties  assessed  against  this  complainant,  at 
which  time  and  place  you  may  appear  and  resist  said  applica- 
tion if  you  see  fit  so  to  do. 


Dated  at 


this 


day  of  June,  A.  D.  1921. 


Solicitor  for  Complainant. 


FORMS  155 

III. 

CERTIFICATE  OF  MAILING  NOTICE. 

UNITED  STATES  OF  AMERICA,  1 
STATE  OF  ILLINOIS,  Us. 

ROCK  ISLAND  COUNTY,  J 

,  being  first  duly  sAvorn,  according  to 

law,  on  her  oath  deposes  and  says  that  she  is  of  full  age  and  a 

resident  of  the  City  of ,  County  of , 

and  State  of   ,  that  on  the  22nd  day  of 

June,  A.  D.  1921,  at  or  about  four  thirty  (4:30)  o'clock  of  the 
afternoon,  she  deposited  in  the  United  States  mail,  at  the  Post 

Office  at , ,  and 

postage  prepaid,  addressed  to •> 

Collector  of  Internal  Revenue,  Federal  Building,  Chicago,  Illi- 
nois, one  copy  of  the  foregoing  and  attached  notice  of  applica- 
tion for  injunction. 

Deponent  further  deposes  and  says  that  at  the  time  and 
place  last  aforesaid,  she  also  deposited  in  the  United  States 
mail,  postage  prepaid,  one  copy  of  the  attached  and  foregoing 

Notice  of  Application  for  Injunction,  addressed  to 

,  Deputy  Collector  of  Internal  Revenue, 

Federal  Building,  Rock  Island,  Illinois. 

Further  deponent  saith  not. 


Subscribed  and  sworn  to  before  me  by  the  said 

,  this  22nd  day  of  June,  A.  D.  1921. 


156 


FORMS 


IN 


VI. 
ORDER  FOR  PRELIMINARY  INJUNCTION. 

THE    DISTRICT    COURT    OF    THE   UNITED    STATES 
FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 
NORTHERN  DIVISION 


(Name  of  Complainant  here) 

Complainant, 

V. 


IN  EQUITY. 

(Name  of  Collector  here) 

Collector  of  Internal  Revenue  of  > 
the  United  States  for  the  First  In-  [  ORDER    FOR    PRELIM- 
ternal  Revenue  Collection  District         INARY   INJUNCTION. 
of  Illinois,  and 

EDGAR  MORSE,  Deputy  Collec- 
tor, etc.. 

Defendants. 

IT  IS  ORDERED,  That  a  preliminary  injunction  issue  in 
the  above  entitled  cause,  temporarily  enjoining  and  restraining 
the  defendants,  and  each  of  them,  their  agents,  deputies  and 
employees,  from  proceeding  any  further  in  the  collection  of 
the  asserted  tax  penalties  and  interest  thereon  or  any  part 
thereof,  set  forth  and  described  in  the  Bill  of  Complaint  therein 
against  the  said  Complainant  by  seizure  or  sale  of  his  property 
or  any  part  thereof  until  this  Court  shall  make  other  and  fur- 
ther order  to  the  contrary. 

June ,  A.  D.  1921,  at o'clock M. 

Entered, 


United  States  District  Judge. 
V. 


IN 


PRELIMINARY  INJUNCTION. 

THE   DISTRICT   COURT    OF    THE   UNITED    STATES 
FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 
NORTHERN  DIVISION 

The  President  of  the  United  States  of  America,  to 

,  Collector  of  Internal  Revenue  of  the 

United  States  for  the  First  Internal  Revenue  Collection 
District  of  Illinois  and ,  Deputy  Col- 
lector, 


FORMS  157 

GREETING : 

Whereas,    It  has  been  represented  to  us  in  our  District 
Court  of  the  United  States  for  the  Southern  District  of  Illinois, 

Northern  Division,  in  Chancery  sitting,  on  the  part  of 

,  in  a  certain  bill  exhibited  in  said  Court,  to 

the  Judge  thereof,  against  ,  Collector  of 

Internal  Revenue  of  the  United  States  for  the  First  Internal 

Revenue  Collection  District  of  Illinois  and , 

Deputy  Collector,  acting  under  his  instructions  that  there  has 
been  issued  by  the  said ,  Collector  of  In- 
ternal Revenue  of  the  United  States  for  the  First  Internal  Col- 
lection District  of  Illinois,  and ,Deputy  Col- 
lector, acting  under  his  instructions,  a  certain  writ  of  distraint 

against  the  assets  of  the  said ,  under  which  writ 

the  said  defendants  purpose  and  threaten  to  immediately  seize 

and  sell  whatever  of  the  property  of  the  said , 

they  may  find  in  the  said  District,  and  to  apply  the  same  to  the 
satisfaction  of  a  certain  purported  tax,  and  it  being  ordered 
that  a  Preliminary  Injunction  issue  out  of  the  said  Court,  upon 
said  bill,  temporarily  enjoining  you,  the  said  defendants,  and 
each  of  you,  as  prayed  in  said  bill : 

We,  therefore,  in  consideration  thereof  and  of  the  particu- 
lar matters  in  said  bill  set  forth,  do  strictly  command  you,  the 

said   ,  Collector  of  Internal  Revenue  of 

the  United  States  for  the  First  Internal  Collection  District  of 

Illinois,  and ,  Deputy  Collector,  that 

YOU  DO  ABSOLUTELY  DESIST  AND  REFRAIN  from  pro- 
ceeding any  further  in  the  collection  of  the  asserted  taxes,  pen- 
alties and  interest  thereon,  or  any  part  thereof,  against  the  said 

,  by  seizure  or  sale  of  his  property,  or  of 

any  part  thereof,  until  this  Court  shall  make  other  and  further 
order  to  the  contrary.  Hereof  fail  not  under  penalty  of  what 
the  law  directs. 

To  the  Marshal  of  the  Southern  District  of  Illinois  to  exe- 
cute and  return  in  due  form  of  law. 

Witness,  the  Honorable  ,  Judge  of 

our  District  Court,  and  the  seal  thereof,  at  Peoria,  in  said  Dis- 
trict, this  25111  day  of  July,  in  the  year  of  our  Lord  one  thou- 
sand nine  hundred  and  twenty-one  and  our  Independence  the 
one  hundred  and  forty-fifth. 

Duplicate  Writ :  Clerk. 

A  true  copy : 

Attest : 
Clerk. 


158  FORMS 


GROUP  III. 

Forms  Pertaining  to  Search. 

I.  Affidavit  for  Search  Warrant. 

II.  Search  Warrant. 

III.  Return  to  Search  Warrant. 

IV.  Petition  to  Quash  Search  Warrant. 
V.  Order  Denying  Petition  to  Quash. 


ss. 


FORMS  159 

I. 
AFFIDAVIT  FOR  SEARCH  WARRANT. 

UNITED  STATES  OF  AMERICA,  \ 

SOI^THERN  DISTRICT  OF  IL- 
LINOIS, SOUTHERN  DIVL 
SION, 

,  being  duly  sworn,  on  oath 

deposes  and  says  that  he  is  a  Federal  Prohibition  Officer  within 
the  above  Division  and  District. 

That  certain  intoxicating  liquor,  to-wit,  a 

liquor  containing  more  than  one-half  of  one  per  cent  of  alcohol 
by  volume  is  being  sold  on  the  premises  known  as 

in  the of ,  County  of 

,  and  State  of  Illinois,  and  within  the 

Southern  Division  of  the  Southern  District  of  Illinois. 

That  the  said  premises  are  occupied  by 

That  on  the day  of , 

A.  D.  192...,  this  affiant  purchased  on  the  above  described 

premises   of  intoxicating  liquor, 

to-wit,  

That  intoxicating  liquor,  to-wit,  a   , 

the  exact  amount  of  wliich  is  unknown  to  this  affiant  is  pos- 
sessed and  used  on  the  above  describeed  premises  by  the  said 

in  violation  of 

the  National  Prohibition  Act. 


Subscribed  and  sworn  to  before  me  this  day  of 

A.  D.  192... 


United  States  Commissioner  for  the  Southern  Dis- 
trict of  Illinois. 

SEARCH  WARRANT. 

UNITED  STATE  OF  AMERICA,  1 
SOUTHERN  DISTRICT  OF  ILLI-  kss. 
NOIS,  SOUTHERN  DIVISION,  J 

To 

in  and  for  the  Southern  Division  of  the  Southern  District  of 
Illinois,  and  to  his ,  or  any  of  them. 


160  FORMS 

WHEREAS,  Complaint  on  oath  and  in  writing,  a  copy  of 
which  said  complaint  is  hereto  attached,  has  this  day  been  made 

before  me,  ,  a  United  States 

Commissioner  in  and  for  the  said  Division  and  District,  by 

,  alleging  that 

intoxicating liquor  is  being  sold  upon 

certain  premises  in  the of , 

County  of ,and  State  of  Illinois,  and 

within  the  Division  and  District  aforesaid,  said  premises  being 

known  and  described  as 

and  alleging  further  that  the  said 

has  purchased  intoxicating  liquor  upon  said  premises  on  the 

day  of ,  A.  D.  192. .  .,  and 

that  there  is  upon  the  said  premises  certain  intoxicating  liquor 
possessed  on  said  premises  in  violation  of  the  National  Prohibi- 
tion Act,  the  exact  amount  of  which  is  unknown  to  this  affiant. 

YOU  ARE  THEREFORE  COMMANDED  IN  THE  NAME 
OF  THE  PRESIDENT  OF  THE  UNITED  STATES  to  enter 
said  premises  in  the  day  time  or  night  time  and  there  diligently 

to  investigate  and  search  for  the  liquor 

herein  described,  and  to  seize  the  same  and  bring  the  same  be- 
fore me,  and  to  report  your  acts  concerning  the  same  as  re- 
quired of  you  by  law. 

GIVEN  UNDER  MY  HAND  AND  SEAL  this 

day  of ,  A.  D.  192.... 


United  States  Commissioner. 


III. 
RETURN  TO  SEARCH  WARRANT. 

RECEIVED  this  warrant  this day  of 

A.  D.  192.... 

RETURNED  this  warrant  this day  of 

A.  D.  192.... 

I  have  made  search  of  the  premises  described  in  the  within 
warrant  and  I  have  seized  the  following  property : 

(a)  I  have  further  executed  the  within  warrant  by  giving 
a  copy  thereof,  together  with  a  receipt  for  the  property  taken, 
to 

(b)  No  person  having  been  found  on  the  within  premises 
I  have  left  a  copy  of  the  within  warrant  and  a  receipt  for  the 
property  taken  in  the  place  where  the  property  taken  was 
found. 


FORMS  161 

I, ,  the  officer  by  whom  this  warrant 

was  executed,  do  swear  that  the  above  inventor}^  contains  a 
true  and  detailed  account  of  all  property  taken  by  me  on  the 
warrant. 


By. 


Subscribed  and  sworn  to  before  me  this day  of 

A.  D.  192.... 


IV. 
PETITION  TO  SQUASH  SEARCH  WARRANT. 

IN    THE    DISTRICT   COURT    OF    THE   UNITED    STATES 

FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION 

UNITED  STATES 

V. 

CERTAIN  DOCUMENTS. 

Now  comes  the  petitioner, ,  and 

alleges  that  he  is  a  citizeen  of  the  United  States  and  a  resident 

of  the  City  of ,  and  State  of , 

and  that  he  is  the  occupant  of  the  premises  described  in  the 

search  warrant  issued  herein,  , 

in  said  City  of ,  and  that  he  is  the  person 

in  whose  possession  the  papers,  documents  and  memoranda  de- 
scribed in  the  said  search  warrant  are  claimed  to  be,  and  your 
petitioner  respectfully  prays  that  said  search  warrant  may  be 
quashed  and  held  for  naught,  and  that  the  papers,  memoranda, 
and  documents  taken  under  the  pretended  authority  thereof 
may  be  immediately  returned  to  his  possession  for  the  follow- 
ing reasons : 

First.     The  affidavit  and  sworn  statement  of  one 

,  upon  whi(^h  the  said  search  warrant  was  issued, 

furnished  no  sufficient  basis  for  the  issuance  of  said  search 
warrant,  for  the  reason  that  there  are  no  facts  stated  in  said 
affidavit  or  in  said  sworn  testimony  which  show  any  probable 
cause  for  the  issuance  of  the  warrant ; 


162  FORMS 

Second.  The  said  search  warrant  is  vague,  insufficient  and 
uncertain  for  the  reason  that  the  property  attempted  to  be 
taken  thereunder  is  not  particularly  identified  and  described; 

Third.  There  has  been  presented  no  sufficient  affidavit  or 
statements  of  fact,  supported  by  oath  or  affirmation,  showing 
that  a  felony  or  other  violation  of  any  laws  of  the  United 
States  has  been  committed,  as  a  ground  for  the  issuance  of  said 
search  warrant ; 

Fourth.     The  said  search  warrant  purports  to  have  been 

issued  upon  the  affidavit  of  one ,  "that 

he  has  good  reason  to  believe,  and  does  verily  believe,  that  in 
and  upon  certain  premises  there  has  been  and  now  is  located 
and  concealed  certain  property,  which  said  property  has  been 
used  as  a  means  to  commit  certain  felonies."  But  the  facts,  if 
any,  which  furnish  the  foundation  for  said  alleged  belief  are 
not  set  out  in  said  affidavit ; 

Fifth.  The  affidavit  and  the  sworn  testimony,  in  support 
of  the  application  for  said  search  warrant,  do  not  set  out  facts 
from  which  it  would  appear  how  or  in  what  manner,  or  by 
what  means,  the  said  papers,  documents  and  memoranda  de- 
scribed in  the  said  search  warrant  were  used  or  attempted  to 
be  used  in  the  commission  of  any  alleged  felony ; 

Sixth.  There  is  not  pending  in  this  Court,  or  in  any  other 
Court  of  the  United  States,  any  charge  against  this  petitioner 
of  the  commission  of  any  of  the  alleged  felonies  referred  to  in 
said  affidavit  or  in  said  sworn  testimony,  nor  is  there  any 
charge  of  any  such  alleged  felony  now  pending  in  this  Coui't, 
or  in  any  other  Court  of  competent  jurisdiction  against  any  of 
the  corporation  named  in  said  affidavit  and  said  sworn  testi- 
mony; 

Seventh.  The  affidavit  and  the  sworn  testimony  in  sup- 
port of  the  application  for  said  search  warrant  do  not  set  forth 
the  facts  tending  to  show  the  grounds  of  the  application  or 
probable  cause  for  believing  that  they  exist. 

Eighth.  The  said  search  warrant  is  illegal  and  void  for 
the  reason  that  under  its  pretendeed  authority  the  petitioner 
and  his  premises  are  being  subjected  to  an  unreasonable  search 
and  seizure  in  violation  of  the  Fourth  Amendment  to  the  Con- 
stitution of  the  United  States ; 

Ninth.  The  said  search  warrant  is  void  and  illegal  in  that 
through  and  by  means  thereof  an  attempt  is  being  made  to 
compel  the  petitioner  to  be  a  witness  against  himself,  in  viola- 


FORMS  163 

tion  of  the  Fifth  Amendment  to  the  Constitution  of  the  United 
States; 

Tenth.     Section of  Title of  said  Act  of 

,  under  which  said  search  warrant  was 

issued,    does    not    authorize    the    search    for    and    seizure    of 
"papers,"  and  for  that  reason  said  search  warrant  is  void; 

Eleventh.  Said  search  warrant  is  void  for  the  reason  that 
it  authorizes  the  search  for  and  seizure  of  "papers"  of  the  peti- 
tioner and  other  named  in  the  said  affidavit  and  sworn  testi- 
mony, which  "papers"  are  not  "papers"  claimed  in  said  affi- 
davit and  in  said  sworn  testimony  to  have  been  used  in  viola- 
tion of  Section ,  Title ,  of  said  Act  of 

Twelfth.  The  said  search  warrant  is  void  for  the  reason 
that  it  does  not  particularly  describe  the  property  to  be  seized, 
in  this,  that  it  does  not  state  who  is  the  owner  of  the  property 
to  be  searched  for  and  seized ; 

Thirteenth.  The  said  search  warrant  is  void  because  it 
authorizes  and  directs  the  search  and  seizure  of  communica- 
tions, letters,  papers  and  documents  of  the  petitioner,  without 
regard  to  the  question  as  to  M'hether  such  communications,  let- 
ters, papers,  and  documents  are  privileged  communications  as 
between  attorney  and  client. 

Wherefore,  for  the  reasons  aforesaid,  the  petitioner  re- 
spectfully prays  that  the  said  search  warrant  may  be  quashed 
and  the  Court  Order  for  the  issuance  thereof  vacated,  and  that 
all  papers,  documents,  memoranda  and  books  already  seized  by 
said  officers  and  agents  under  the  pretended  authority  of  said 
search  warrant  may  be  forthwith  returned  to  the  petitioner, 
which  said  papers  and  documents  are  referred  to  in  the  receipt 
of  the  Deputy  United  States  Marshal,  attached  hereto,  marked 
Exhibit  A  and  made  a  part  hereof. 


Petitioner. 
Attorneys  for  Petitioner. 


164 


FORMS 


ORDER  DENYING  PETITION  TO  QUASH. 


UNITED  STATES  OF  AMERICA, 
SOUTHERN  DISTRICT  OF  ILLINOIS, 


■ss. 


IN    THE   DISTRICT   COURT    OF    THE   UNITED    STATES 

FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION 


UNITED  STATES  OF  AMERICA, 

V. 

CERTAIN  DOCUMENTS. 


IN  THE  MATTER  OF 
THE  PETITION  OF 

TO  QUASH,  ETC. 


Now  on  this  day  comes  on  for  hearing  the  petition  of 

,  in  the  above  entitled  cause,  to  set  aside 

and  vacate  the  order  entered  in  said  cause  on <, 

and  to  quash  the  search  warrant  which  issued  pursuant  to  said 
order,  and  for  the  return  of  certain  letters,  papers  and  docu- 
ments, and  the  parties  hereto  being  now  present  in  Court,  and 
the  Court  having  heard  the  arguments  of  counsel  for  the  re- 
spective parties,  and  being  fully  advised  in  the  premises,  it  is 
hereby 

Ordered,  Adjudged  and  Decreed  that  the  prayer  of  said 

petition  of to  set  aside  and  vacate  said 

order  of ,  and  to  quash  the  search  war- 
rant issued  in  pursuance  thereof  and  for  the  return  of  certain 
letters,  papers  and  documents,  be,  and  the  same  is  hereby  over- 
ruled and  denied,  and  said  petition  is  hereby  ordered  dismissed. 

Judge. 


FORMS  165 


GROUP  IV. 

Forms  to  Be  Used  in  Application  for  Return  of 
Property  Seized. 

I.     Petition  for  Return  of  Liquor  Seized  without  Warrant. 
II.     Order  Returning  Liquor  Unlawfully  Seized. 


166  FORMS 


PETITION  FOR  RETURN  OF  LIQUOR  SEIZED  WITHOUT 

WARRANT. 

IN    THE    DISTRICT   COURT    OF    THE   UNITED    STATES 

FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION 


(Certain  party)  PETITION  FOR   RE- 

V-  TURN    OF    PROP- 
ERTY. 


(District  Attorney,   Prohibition  Agent,   or 
as  case   may  be) 


Now  comes ,  by , 

his  attorney,  and  shows  unto  the  Court  that  he  is  a  resident  of 
, ,  occupying  the  second  story  of  the  building 

(City)  (State) 

located  at , , That  he  conducts  a 

(Address)  (City)  (State) 

cigar,  confectionery  and  soft  drink  business  in  the  first  story 
of  said  building,  but  does  not  conduct  any  business  in  the  sec- 
ond story  of  said  building,  but  uses  the  same  entirely  as  a  home 
for  himself  and  family.  That  he  was  so  occupying  said  home 
on ,  and  still  continues  to  do  so. 

(Certain  date) 

This  petitioner  further  represents  that  on  said 

(Certain  date) 

he  had  in  his  possession  in  said  home,  certain  liquors  for 
his  own  private  use,  the  same  then  and  there  being  tax  paid. 
That  said  liquors  consisted  of 

(Here  describe  liquors,  etc.) 

That  he  bought  said  liquors  in  the  regular  course  of  busi- 
ness from , , , , 

(Name)  (Address)  (City)  (State) 

prior  to ,  and  that  he  acquired,  possessed  and  used 

(Certain  date) 

said  liquors  for  his  own  use  and  for  no  other. 

This  petitioner  further  represents  that  on  said 

(Certain  date) 

without  right  or  warrant  of  any  kind,  some  person  unknown 
to  this  petitioner,  representing  himself  to  be  a  United 
States  Revenue  officer,  entered  said  dwelling  house  of  your 
petitioner  on  the  second  floor  of  said  premises,  and  without 
right  or  warrant,  seized  all  said  liquors,  together  with  contain- 
ers, and  delivered  the  same  into  possession  of 


FORMS  167 

'  and  ,  who  now  unlawfully  withhold  the 

same  from  the  possession  of  this  petitioner. 

This  petitioner  further  represents  that  an  effort  was  made 
by  officers  of  this  Court  to  indict  this  petitioner  since  said 
liquors  were  seized  and  held  for  violation  of  the  National  Pro- 
hibition Act,  but  that  no  indictment  or  other  prosecution  has 
been  had  against  this  petitioner  on  said  account.  That  this 
petitioner  has  never  at  any  time  been  arrested,  tried  or  charged 
in  any  Court  with  the  violation  of  any  liquor  laws  of  the  city, 
state  or  nation. 

This  petitioner  further  represents  that  he  is  informed  and 
believes  that  said  liquors  are  under  the  care  and  control  of  the 

above  named ,  and  

without  right  or  lawful  authority  to  hold  the  same. 

Your  petitioner  therefore  prays  that  an  order  of  this  Hon- 
orable Court  be  entered  against  the  said 

and ,  directing  them  to  return  all  of  said 

property,  liquors,  spirits  and  containers  to  this  petitioner. 

IN  WITNESS  WHEREOF,  I  have  hereunto  set  my  hand 
and  seal  this day  of ,  A.  D.  19 . .  . . 

(Seal) 

STATE  OF 


COUNTY 


,  being  first  duly  sworn,  on  his 

oath  states  that  he  is  the  petitioner  in  the  foregoing  petition; 
that  he  has  read  said  petition  and  that  the  facts  therein  set 
forth  are  true. 


Subscribed  and  sworn  to  before  me  this day  of 

,  A.  D.  19.... 


Nolarv  Public, 


168  FORMS 

II. 

ORDER   RETURNING   LIQUOR    UNLAWFULLY    SEIZED. 

IN   THE   DISTRICT   COURT    OF    THE   UNITED    STATES 

FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION 


STATE  OF 

COUNTY 

(Certain  party) 


V. 


(District  Attorney,   Prohibition  Agent,  or 
as  case  may  be)  


ORDER  FOR  RETURN 

ss. 

OF  GOODS. 


And  now  on  this  day  this  cause  coming  on  to  be  heard  upon 

the  petition  of ,  by , 

his  attorney,  and  it  appearing  to  the  Court  that  the  defendants, 

and ,  have  been 

duly  served  with  a  notice  of  the  hearing,  and  the  Court  having 
heard  said  petition  and  evidence  in  support  thereof,  and  the 
arguments  of  counsel,  and  being  fully  advised  in  the  premises, 
doth  find  that  the  allegations  in  said  petition  are  true,  and  that 
the  following  property,  liquors  and  containers  are  wrongfully 

withheld  by  the  said and 

from  the  said  petitioner ,  towit : 

(Here  describe  liquor,  etc.) 

It   is   therefore    ordered,   adjudged   and   decreed   by   the 

Court  that  the  said and 

deliver  all  of  said  property,  liquor  and  containers  to  the  peti- 
tioner,   

Judge. 


FORMS  169 


GROUP  V. 

Forms  to  Be  Used  in  Application  for  Reopening  Premises 
Closed  by  Injunction. 

I.     Petition  to  Reopen  Premises  Closed  by  Abatement  Pro- 
ceedings. 

II.     Order  Modifying  Decree  Permitting  Premises  to  Reopen. 
See  Form  VI,  Group  I. 


170  FORM'S 

PETITION  FOR  MODIFICATION  OF  DECREE  IN  ABATE- 
MENT PROCEEDINGS  UNDER  VOLSTEAD  ACT. 

IN    THE    DISTRICT    COURT    OF    THE    UNITED    STATES 

FOR  THE  SOUTHERN  DISTRICT  OF  ILLINOIS 

NORTHERN  DIVISION 

At  the Term  thereof,  A.  D.  19 


UNITED  STATES  OF  AMERICA,  K-^  EQUITY 
Complainant,  j 

TO  THE  HONORABLE  JUDGE  OF  SAID  COURT : 

YOUR  PETITIONER,  ,  RESPECT- 
FULLY REPRESENTS  that  it  is  one  of  the  defendants  in  the 
above  entitled  cause,  and  that  it  is  the  holder  and  owner  of  a 
long  time  lease  on  the  premises  described  in  the  decree  entered 
herein  at  the  present  term  of  this  Court  bearing  date  of 
, , ,  which  premises  are  therein  described  : 

(Month)       (Day)         (Year) 

(Legal  description  here) 

YOUR  PETITIONER  FURTHER  REPRESENTS  UNTO 

YOUR  HONOR  that  one  is  desirous  of 

renting  the  said  premises  from  your  petitioner  for  the  purpose 
of  storing  lawful  and  legitimate  merchandise  therein,  which 
shall  not  in  any  manner  be  in  violation  of  any  law,  rule  or  regu- 
lation of  the  United  States  of  American,  and  shall  not  be  any 
liquor  kept  therein  which  shall  contain  more  than  one-half  of 
one  per  cent  of  alcohol  by  volume  nor  shall  said  premises  be 
maintained  as  a  common  and  public  nuisance  ;  and  that  the  said 
occupancy  shall  not  be  in  violation  of  the  said  decree. 

YOUR  PETITIONER  FURTHER  REPRESENTS  that  it 
did  not,  nor  did  any  of  its  officers  or  agents,  have  any  knowl- 
edge at  the  time  of  the  filing  of  the  Bill  of  Complaint  for  in- 
junction in  this  cause  on ,   , ,  that  the  said 

(Month)       (Day)         (Year) 

premises  was  used  in  violation  of  any  law  of  the  United  States 
of  America,  and  that  this  petitioner  was  not  nor  were  any  of 
its  officers  or  agents  a  party  to  any  violation  of  any  law  in,  upon 
or  about  the  said  premises  as  charged  in  said  Bill. 

YOUR  PETITIONER  FURTHER  REPRESENTS  that  in 
equity  and  good  conscience  it  should  not  be  deprived  of  the 
use  and  income  of  said  premises  by  reason  of  any  act  of  any 


FORMS  171 

other  defendant  to  this  proceeding,  and  that  your  petitioner 
should  be  permitted  to  open  the  said  premises  for  the  purpose 
of  renting  the  same  for  the  storage  of  legitimate  and  laAvful 
merchandise  as  aforesaid. 

YOUR  PETITIONER  herewith  presents  the  Entry  of  Ap- 
pearance of ,  who  enters  his  full  appear- 
ance in  the  above  entitled  cause  and  becomes  a  party  to  this 
suit  and  agrees  to  be  bound  by  the  terms  of  the  said  decree. 

THEREFORE,  YOUR  PETITIONER  PRAYS  that  the 
Court  will  modifj^  the  said  decree  so  as  to  permit  the  said 

to  become  a  party  thereto  and  also 

granting  the  permission  to  your  petitioner  to  rent  the  said 
premises  for  the  storage  of  legitimate  and  lawful  merchandise 
as  aforesaid  and  that  the  said  decree  may  be  modified  to  such 
extent ;  and  that  your  petitioner  may  have  such  other  and  fur- 
ther relief  in  the  premises  as  to  the  Court  of  Equity  shall  seem 
meet,  right  and  just. 

Petitioner. 


172  THE  ACT 

THE  NATIONAL  PROHIBITION  ACT. 

AN  ACT  to  prohibit  intoxicating  beverages,  and  to  regu- 
late the  manufacture,  production,  use  and  sale  of  high-proof 
spirits  for  other  than  beverage  purposes,  and  to  insure  an 
ample  supply  of  alcohol  and  promote  its  use  in  scientific  re- 
search and  in  the  development  of  fuel,  dye,  and  other  lawful 
industries. 

BE  IT  ENACTED  by  the  Senate  and  House  of  Repre- 
sentatives of  the  United  States  of  America  in  Congress  assem- 
bled. That  the  short  title  of  this  act  shall  be  the  "National 
Prohibition  Act." 

Concerning  Manufacture,  Sale,  Etc.,  During  War  and 
Demobilization:  Sec.  1.  After  June  thirtieth,  nineteen  hun- 
dred and  nineteen,  until  the  conclusion  of  the  present  war  and 
thereafter  until  the  termination  of  demobilization,  the  date 
of  which  shall  be  determined  and  proclaimed  by  the  President 
of  the  United  States,  for  the  purpose  of  conserving  the  man 
power  of  the  Nation,  and  to  increase  efficiency  in  the  produc- 
tion of  arms,  munitions,  ships,  food,  and  clothing  for  the  Army 
and  Navy,  it  shall  be  unlawful  to  sell  for  beverage  purposes 
any  distilled  spirits,  and  during  said  time  no  distilled  spirits 
held  in  bond  shall  be  removed  therefrom  for  beverage  purposes 
except  for  export.  After  May  first,  nineteen  hundred  and 
nineteen,  until  the  conclusion  of  the  present  war  and  there- 
after until  the  termination  of  demobilization,  the  date  of  which 
shall  be  determined  and  proclaimed  by  the  President  of  the 
United  States,  no  grains,  cereals,  fruits,  or  other  food  products 
shall  be  used  in  the  manufacture  or  production  of  beer,  wine, 
or  other  intoxicating  malt  or  vinous  liquor  for  beverage  pur- 
poses. After  June  thirtieth,  nineteen  hundred  and  nineteen, 
until  the  conclusion  of  the  present  war  and  thereafter  until 
the  termination  of  demobilization,  the  date  of  which  shall  be 
determined  and  proclaimed  by  the  President  of  the  United 
States,  no  beer,  wine,  or  other  intoxicating  malt  or  vinous 
liquor  shall  be  sold  for  beverage  purposes  except  for  export. 
The  Commissioner  of  Internal  Revenue  is  hereby  authorized 
and  directed  to  prescribe  rules  and  regl^lations,  subject  to 
the  approval  of  the  Secretary  of  the  Treasury,  in  regard  to 
the  manufacture  and  sale  of  distilled  spirits  and  removal  of 


THE  ACT  173 

distilled  spirits  held  in  bond  after  June  thirtieth,  nineteen 
hundred  and  nineteen,  until  this  Act  shall  cease  to  operate, 
for  other  than  beverage  purposes;  also  in  regard  to  the  manu- 
facture, sale,  and  distribution  of  wine  for  sacramental,  medicin- 
al, or  other  than  beverage  uses.  After  the  approval  of  this 
Act  no  distilled  malt,  vinous,  or  other  intoxicating  liquors 
shall  be  imported  into  the  United  States  during  the  continu- 
ance of  the  present  war  and  period  of  demobilization:  Pro- 
vided, that  this  provision  against  importation  shall  not  apply- 
to  shipments  en  route  to  the  United  States  at  the  time  of  the 
passage  of  this  act. 

Any  person  who  violates  any  of  the  foregoing  provisions 
shall  be  punished  by  imprisonment  not  exceeding  one  year,  or 
by  fine  not  exceeding  $1,000,  or  by  both  such  imprisonment  and 
fine :  Provided,  that  the  President  of  the  United  States  be,  and 
hereby  is,  authorized  and  empowered,  at  any  time  after  the 
passage  of  this  act,  to  establish  zones  of  such  size  as  he  may 
deem  advisable  about  coal  mines,  munition  factories,  shipbuild- 
ing plants,  and  such  other  plants  for  war  material  as  may  seem 
to  him  to  require  such  action  whenever  in  his  opinion  the 
creation  of  such  zones  is  necessary  to,  or  advisable  in,  the 
proper  prosecution  of  the  war,  and  that  he  is  hereby  authorized 
and  empowered  to  prohibit  the  sale,  manufacture,  or  distribu- 
tion of  intoxicating  liquors  in  such  zones,  and  that  any 
violation  of  the  President's  regulations  in  this  regard  shall  be 
punished  by  imprisonment  for  not  more  than  one  year  or  by 
fine  of  not  more  than  $1,000,  or  by  both  such  fine  and  imprison- 
ment:  Provided,  further,  that  nothing  in  this  act  shall  be 
construed  to  interfere  with  the  power  conferred  upon  the 
President  by  section  fifteen  of  the  food-control  act,  approved 
August  tenth,  nineteen  hundred  and  seventeen.  (Res.  Sept.  V2, 
1918,  No.  40,  c.  170,  40  Stat.;  Act.  Nov.  21,  1918,  c.  212,  1,  40 
Stat.) 

Note:  Section  2  provides  that  "under  such  rules,  regula- 
tions and  bonds  as  secretary  of  treasury  may  prescribe,  dis- 
tilled spirits  of  alcohol  produced  prior  to  October  3rd,  1917, 
from  products  the  growtli  of  the  Island  of  Porto  Rico  may  be 
admitted  from  said  island  into  the  United  States  for  industrial 
purposes  in  llx-  arts  and  science.  Such  alcohol  or  distilled 
spirits  shall  not  he  used  for  beverage  puri)Oses,  etc." 


174  THE  ACT 

To  Provide  for  the  Enforcement  of  War  Prohibition: — 
Sec.  1.  The  term  "War  Prohibition  Act"  used  in  this  act  shali 
mean  the  provisions  of  any  act  or  acts  prohibiting  the  sale  and 
manufacture  of  intoxicating  liquors  until  the  conclusion  of  the 
present  war  and  thereafter  until  the  termination  of  demobiliza- 
tion, the  date  of  vhich  shall  be  determined  and  proclaimed  by 
the  President  of  the  United  States.  The  words  "beer,  wine,  or 
other  intoxicating  malt  or  vinous  liquors"  in  the  War  Prohibi- 
tion Act  shall  be  hereafter  construed  to  mean  any  such  bever- 
ages which  contain  one-half  of  1  per  centum  or  more  of  alcohol 
by  volume :  Provided,  that  the  foregoing  definition  shall  not 
extend  to  dealcoholized  wine  nor  to  any  beverage  or  liquid 
produced  by  the  process  by  which  beer,  ale,  porter  or  wine  is 
produced,  if  it  contains  less  than  one-half  of  1  per  centum  of 
alcohol  by  volume,  and  is  made  as  prescribed  in  section  37  of 
Title  II  of  this  act,  and  is  otherwise  denominated  than  as  beer, 
ale,  or  porter,  and  is  contained  and  sold  in,  or  from,  such 
sealed  and  labeled  bottles,  casks,  or  containers  as  the  commis- 
sioner may  by  regulation  prescribe. 

Commissioner  Must  Report  Violations  of  War  Prohibition 
Act : — Sec.  2.  The  commissioner  of  internal  revenue,  his  assist- 
ants, agents,  and  inspectors,  shall  investigate  and  report 
violations  of  the  War  Prohibition  Act  to  the  United  States 
attorney  for  the  district  in  which  committed,  who  shall  be 
charged  with  the  duty  of  prosecuting,  subject  to  the  direction 
of  the  attorney  general,  the  offenders  as  in  the  case  of  other 
offenses  against  laws  of  the  United  States ;  and  such  commis- 
sioner of  internal  revenue,  his  assistants,  agents,  and  inspectors 
may  swear  out  warrants  before  United  States  commissioners 
or  other  officers  or  courts  authorized  to  issue  the  same  for  the 
apprehension  of  such  offenders,  and  may,  subject  to  the  con- 
trol of  the  said  United  States  attorney,  conduct  the  prosecution 
at  the  committing  trial  for  the  purpose  of  having  the  offenders 
held  for  the  action  of  a  grand  jury. 

Where  Liquor  is  Kept  is  Declared  to  be  a  Public  Nuisance : 
— Sec.  3.  Any  room,  house,  building,  boat,  vehicle,  structure, 
or  place  of  any  kind  where  intoxicating  liquor  is  sold,  manu- 
factured, kept  for  sale,  or  bartered  in  violation  of  the  War 
Prohibition  Act,  and  all  intoxicating  liquor  and  all  property 


THE  ACT  175 

kept  and  used  in  maintaining  such  a  place,  is  hereby  declared 
to  be  a  public  and  common  nuisance,  and  any  person  who 
maintains  or  assists  in  maintaining  such  public  and  common 
nuisance  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  shall  be  fined  not  less  than  $100  nor  more  $1,000,  or  be 
imprisoned  for  not  less  than  thirty  days  or  more  than  one  year, 
or  both.  If  a  person  has  knowledge  that  his  property  is  occu- 
pied or  used  in  violation  of  the  provisions  of  the  War  Prohibi- 
tion Act  and  suffers  the  same  to  be  so  used,  such  property  shall 
be  subject  to  a  lien  for,  and  may  be  sold  to  pay,  all  fines  and 
costs  assessed  against  the  occupant  of  such  building  or  prop- 
erty for  any  violation  of  the  War  Prohibition  Act  occurring 
after  the  passage  hereof,  which  said  lien  shall  attach  from  the 
time  of  the  filing  of  notice  of  the  commencement  of  the  suit  in 
the  office  where  the  'records  of  the  transfer  of  real  estate  are 
kept ;  and  any  such  lien  may  be  established  and  enforced  by 
legal  action  instituted  for  that  purpose  in  any  court  having 
jurisdiction.  Any  violation  of  this  title  upon  any  leased  prem- 
ises by  the  lessee  or  occupant  thereof  shall,  at  the  option  of 
the  lessor,  work  a  forfeiture  of  the  lease. 

District  Attorney  and  Attorney  General  May  Prosecute 
Suit  in  Equity: — Sec.  4.  Tlie  United  States  attorney  for  the 
district  where  such  nuisance  as  is  defined  in  this  act  exists,  or 
any  officer  designated  by  him  or  the  attorney  general  of  the 
United  States,  may  prosecute  a  suit  in  equity  in  the  name  of 
the  United  States  to  abate  and  enjoin  the  same.  Actions  in 
equity  to  enjoin  and  abate  such  nuisance  may  be  brought  in 
any  court  having  jurisdiction  to  hear  and  determine  equity 
causes.  The  jurisdiction  of  the  courts  of  the  United  States 
under  this  section  shall  be  concurrent  with  that  of  the  courts 
of  several  states. 

If  it  be  made  to  appear  by  affidavit,  or  other  evidence 
under  oath,  to  the  satisfaction  of  the  court,  or  judge  in  vaca- 
tion that  the  nuisance  complained  of  exists,  a  temporary  writ 
of  injunction  sliall  foi'thwith  i.ssue  restraining  the  defendant 
or  defendants  from  conducting  or  permitting  the  continuance 
of  such  nuisance  until  the  conclusion  of  the  trial.  Where  a 
temporary  injunction  is  prayed  for,  the  court  may  issue  an 
order  restraining  tlie  defendants  and  all  otlier  persons  from 
removing  or  in  any  way  interfci'iiig  with  the  li(|uor  or  fixtures. 


176  THE  ACT 

or  other  things  used  in  connection  with  the  violation  constitut- 
ing the  nuisance.  No  bond  shall  be  required  as  a  condition 
for  making  any  order  or  issuing  any  writ  of  injunction  under 
this  act.  If  the  court  shall  find  the  property  involved  was 
being  unlawfully  used  as  aforesaid  at  or  about  the  time  alleged 
in  the  petition,  the  court  shall  order  that  no  liquors  shall  be 
manufactured,  sold,  bartered,  or  stored  in  such  room,  house, 
building,  boat,  vehicle,  structure,  or  places  of  any  kind,  for  a 
period  of  not  exceeding  one  year,  or  during  the  war  and  the 
period  of  demobilization.  Whenever  an  action  to  enjoin  a 
nuisance  shall  have  been  brought  pursuant  to  the  provisions 
of  this  act,  if  the  owner,  lessee,  tenant,  or  occupant  appears 
and  pays  all  cost  of  the  proceedings  and  files  a  bond,  with 
sureties  to  be  approved  by  the  clerk  of  the  court  in  which  the 
action  is  brought,  in  the  liquidated  sum  of  not  less  than  $500 
nor  more  than  $1,000,  conditioned  that  he  will  immediately 
abate  said  nuisance  and  prevent  the  same  from  being  estab- 
lished or  kept  therein  a  period  of  one  year  thereafter,  or  during 
the  war  and  period  of  demobilization,  the  court,  or  in  vacation 
the  judge,  may,  if  satisfied  of  his  good  faith,  direct  by  appro- 
priate order  that  the  property,  if  already  closed  or  held  under 
the  order  of  abatement,  be  delivered  to  said  owner,  and  said 
order  of  abatement  canceled,  so  far  as  the  same  may  relate  to 
said  property;  or  if  said  bond  be  given  and  costs  therein  paid 
before  judgment  on  an  order  of  abatement  the  action  shall  be 
thereby  abated  as  to  said  room,  house,  building,  boat,  vehicle, 
structure,  or  place  only.  The  release  of  the  property  under  the 
provisions  of  this  section  shall  not  release  it  from  any  judg- 
ment, lien,  penalty,  or  liability  to  which  it  may  be  subject 
by  law. 

In  the  case  of  the  violation  of  any  injunction,  temporary 
or  permanent,  granted  pursuant  to  the  provisions  of  this  Title, 
the  court,  or  in  vacation  a  judge  thereof,  may  summarily  try 
and  punish  the  defendant.  The  proceedings  for  punishment 
for  contempt  shall  be  commenced  by  filing  with  the  clerk  of 
the  court  from  w^hich  such  injunction  issued  information  under 
oath  setting  out  the  alleged  facts  constituting  the  violation, 
whereupon  the  court  or  judge  shall  forthwith  cause  a  warrant 
to  issue  under  which  the  defendant  shall  be  arrested.  The 
trial  may  be  had  upon  affidavits,  or  either  party  may  demand 


THE  ACT  177 

the  production  and  oral  examination  of  the  witnesses.  Any 
person  found  guilty  of  contempt  under  the  provisions  of  this 
section  shall  be  punished  by  a  fine  of  not  less  than  $500  nor 
more  than  $1,000,  or  by  imprisonment  of  not  less  than  thirty 
days,  nor  more  than  twelve  months,  or  by  both  such  fine  and 
imprisonment. 

Commissioner  and  Inspector  May  Prosecute  All  Offenses: 
— Sec.  5.  The  commissioner  of  internal  revenue,  his  assistants, 
agents  and  inspectors,  and  all  other  officers  of  the  United 
States  whose  duty  it  is  to  enforce  criminal  laws,  shall  have  all 
the  power  for  the  enforcement  of  the  War  Prohibition  Act  or 
any  provisions  thereof  which  is  conferred  by  law  for  the 
enforcement  of  existing  laws  relating  to  the  manufacture  or 
sale  of  intoxicating  liquors  under  the  laws  of  the  United 
States. 

Any  Provision  Hereof  Invalid  All  Other  Valid: — Sec.  6. 
If  any  section  or  provision  of  this  act  shall  be  held  to  be 
invalid,  it  is  hereby  provided  that  all  other  provisions  of  this 
act  which  are  not  expressly  held  to  be  invalid  shall  continue 
in  full  force  and  effect. 

Act  Does  Not  Repeal  War  Prohibition: — Sec.  7.  None  of 
the  provisions  of  this  act  shall  be  construed  to  repeal  any  of 
the  provisions  of  the  "War  Prohibition  Act,"  or  to  limit  or 
annul  any  order  or  regulation  prohibiting  the  manufacture, 
sale,  or  disposition  of  intoxicating  liquors  within  certain  pre- 
scribed zones  or  districts,  nor  shall  the  provisions  of  the  act 
be  construed  to  prohibit  the  use  of  the  power  of  the  military 
or  naval  authorities  to  enforce  the  regulations  of  the  Presi- 
dent or  secretary  of  war  or  navy  issued  in  pursuance  of 
law,  proliibiting  the  manufacture,  use,  possession,  sale,  or  other 
disposition  of  intoxicating  liquors  during  the  period  of  the  war 
and  demobilization  thereafter. 

Note:     Above  sections  repealed  by  act  of  March  3rd,  1921. 

TITLE   n. 
PROHIBITION    OF   INTOXICATING    BEVERAGES. 

Meaning  of  Liquor  and  "Intoxicating  Liquor": — Sec.  1. 

When  used  in  Title  II  jiiid  Title  ill  of  this  act  (1)  the  word 


178  THE  ACT 

"Liquor"  or  the  phrase  "intoxicating  liquor"  shall  be  con- 
strued to  include  alcohol,  brandy,  whiskey,  rum,  gin,  beer,  ale, 
porter,  and  wine,  and  in  addition  thereto  any  spirituous,  vinous, 
malt,  or  fermented  liquor,  liquids,  and  compounds,  whether 
medicated,  proprietary,  patented,  or  not,  and  by  whatever 
name  called,  containing  one-half  of  1  per  centum  or  more  of 
alcohol  by  volume  which  are  fit  for  use  for  beverage  purposes : 
Provided,  that  the  foregoing  definition  shall  not  extend  to 
dealcoholized  wine  nor  to  any  beverage  or  liquid  produced  by 
the  process  by  which  beer,  ale,  porter  or  wine  is  produced,  if  it 
contains  less  than  one-half  of  1  per  centum  of  alcohol  by  vol- 
ume, and  is  made  as  prescribed  in  section  37  of  this  title,  and 
is  otherwise  denominated  than  as  beer,  ale,  or  porter,  and  is 
contained  and  sold  in,  or  from,  such  sealed  and  labeled  bottles, 
casks,  or  containers  as  the  commissioner  may  by  regulation 
prescribe. 

(2)  The  word  "person"  shall  mean  and  include  natural 
persons,  associations,  copartnerships,  and  corporations. 

(3)  The  word  "commissioner"  shall  mean  commissioner 
of  internal  revenue. 

(4)  The  term  "application"  shall  mean  a  formal  written 
request  supported  by  a  verified  statement  of  facts  showing 
that  the  commissioner  may  grant  the  request. 

(5)  The  term  "permit"  shall  mean  a  formal  written 
authorization  by  the  commissioner  setting  forth  specifically 
therein  the  things  that  are  authorized. 

(6)  The  term  "bond"  shall  mean  an  obligation  author- 
ized or  required  by  or  under  this  act  or  any  regulation,  executed 
in  such  form  and  for  such  a  penal  sum  as  may  be  required  by 
a  court,  the  commissioner,  or  prescribed  by  regulation. 

(7)  The  term  "regulation"  shall  mean  any  regulation 
prescribed  by  the  commissioner  with  the  approval  of  the  secre- 
tary of  the  treasury  for  carrying  out  the  provisions  of  this 
act,  and  the  commissioner  is  authorized  to  make  such  regu- 
lations. 

Any  act  authorized  to  be  done  by  the  commissioner  may 
be  performed  by  an  assistant  or  agent  designated  by  him  for 
that  purpose.  Records  required  to  be  filed  with  the  commis- 
sioner may  be  filed  with  an  assistant  commissioner  or  other 
person  designated  by  the  commissioner  to  receive  such  records. 


THE  ACT  179 

Commissioner  to  Report  Violation  and  United  States 
Attorney  to  Prosecute: — Sec.  2.  The  commissioner  of  internal 
revenue,  his  assistants,  agents,  and  inspectors  shall  investigate 
and  report  violations  of  this  act  to  the  United  States  attorney 
for  the  district  in  which  committed,  who  is  hereby  charged 
with  the  duty  of  prosecuting  the  offenders,  subject  to  the 
direction  of  the  attorney  general,  as  in  the  case  of  other 
offenses  against  the  laAvs  of  the  United  States ;  and  such  com- 
missioner of  internal  revenue,  his  assistants,  agents,  and  in- 
spectors may  swear  out  warrants  before  the  United  States 
commissioners  or  other  officers  or  courts  authorized  to  issue 
the  same  for  the  apprehension  of  such  offenders,  and  may,  sub- 
ject to  the  control  of  the  United  States  attorney,  conduct  the 
prosecution  at  the  committing  trial  for  the  purpose  of  having 
the  offenders  held  for  the  action  of  a  grand  jury.  Section  1014 
of  the  Revised  Statutes  of  the  United  States  is  hereby  made 
applicable  to  the  enforcement  of  this  act.  Officers  mentioned 
in  said  section  1014  are  authorized  to  issue  search  M^arrants 
under  the  limitations  provided  in  Title  XI  of  the  act  approved 
June  15,  1917. 

After  Act  Becomes  Effective  Liquor  Cannot  Be  Sold,  Etc. : 
— Sec.  3.  No  person  shall  on  or  after  the  date  when  the 
eighteenth  amendment  to  the  constitution  of  the  United  States 
goes  into  eft'ect,  manufacture,  sell,  barter,  transport,  import, 
export,  deliver,  furnish,  or  possess  any  intoxicating  liquor 
except  as  authorized  in  this  act,  and  all  the  provisions  of  this 
act  shall  be  liberally  construed  to  the  end  that  the  use  of  in- 
toxicating liquor  as  a  beverage  may  be  prevented. 

Liquor  for  nonbeverage  purposes  and  wine  for  sacra- 
mental purposes  may  be  manufactured,  purchased,  sold,  bar- 
tered, transported,  imported,  exported,  delivered,  furnished 
and  possessed,  but  only  as  herein  provided,  and  the  commis- 
sioner may,  upon  application,  issue  permits  therefor:  Pro- 
vided, that  nothing  in  this  act  shall  prohibit  the  purchase  and 
sale  of  warehouse  receipts  covering  distilled  spirits  on  deposit 
in  government  l)oiul('d  warehouses,  and  no  special  tax  liability 
shall  attach  to  I  Ik-  business  of  purchasing  and  selling  such 
warehouse  receipts. 

Certain  Articles  Exempted: — Sec.  4.  The  articles  enum- 
erated ill  this  section  sliall  not,  aitci-  liaving  been  manufactured 


180  THE  ACT 

and  prepared  for  the  market,  be  subject  to  the  provisions  of 
this  act  if  they  correspond  with  the  following  descriptions  and 
limitations,  namely : 

(a)  Denatured  alcohol  or  denatured  rum  produced  and 
used  as  provided  by  laws  and  regulations  now  or  hereafter 
in  force. 

(b)  Medicinal  preparations  manufactured  in  accordance 
with  formulas  prescribed  by  the  United  States  Pharmacopea, 
National  Formulary  or  the  American  Institute  of  Homeopathy 
that  are  unfit  for  use  for  beverage  purposes. 

(c)  Patented,  patent,  and  proprietary  medicines  that  are 
unfit  for  beverage  purposes. 

(d)  Toilet,  medicinal,  and  antiseptic  preparations  and 
solutions  that  are  unfit  for  use  for  beverage  purposes. 

(e)  Flavoring  extracts  and  sirups  that  are  unfit  for  use 
as  a  beverage,  or  for  intoxicating  beverage  purposes. 

(f )  Vinegar  and  preserved  sweet  cider. 

A  person  who  manufactures  any  of  the  articles  mentioned 
in  this  section  may  purchase  and  possess  liquor  for  that  pur- 
pose, but  he  shall  secure  permits  to  manufacture  such  articles 
and  to  purchase  such  liquor,  give  the  bonds,  keep  the  records, 
and  make  the  reports  specified  in  this  act  and  as  directed  by 
the  commissioner.  No  such  manufacturer  shall  sell,  use  or 
dispose  of  any  liquor  otherwise  than  as  an  ingredient  of  the 
articles  authorized  to  be  manufactured  therefrom.  No  more 
alcohol  shall  be  used  in  the  manufacture  of  any  extract,  sirup, 
or  the  articles  named  in  paragraphs  b,  c  and  d  of  this  section 
which  may  be  used  for  beverage  purposes  than  the  quantity 
necessary  for  extraction  or  solution  of  the  elements  contained 
therein  and  for  the  preservation  of  the  article. 

Any  person  who  shall  knowingly  sell  any  of  the  articles 
■  mentioned  in  paragraphs  a,  b,  c,  and  d  of  this  section  for  bev- 
erage purposes,  or  any  extract  or  sirup  for  intoxicating 
beverage  purposes,  or  who  shall  sell  any  of  the  same  under 
circumstances  from  which  the  seller  might  reasonably  deduce 
the  intention  of  the  purchaser  to  use  them  for  such  purposes, 
or  shall  sell  any  beverage  containing  one-half  of  1  per  centum 
or  more  of  alcohol  by  volume  in  which  any  extract,  sirup,  or 
other  article  is  used  as  an  ingredient,  shall  be  subject  to  the 
penalties  provided  in  section  29  of  this  title.  If  the  commis- 
sioner shall  find,  after  notice  and  hearing  as  provided  for  in 


THE  ACT  181 

section  5  of  this  title,  that  any  person  has  sold  flavoring 
extract,  sirup  or  beverage  in  violation  of  this  paragraph,  he 
shall  notify  such  person,  and  any  known  principal  for  whom 
the  sale  was  made,  to  desist  from  selling  such  article ;  and  it 
shall  thereupon  be  unlawful  for  a  period  of  one  year  there- 
after for  any  person  so  notified  to  sell  any  such  extract,  sirup, 
or  beverage  without  making  an  application  for,  giving  a  bond, 
and  obtaining  a  permit  so  to  do,  which  permit  may  be  issued 
upon  such  conditions  as  the  commissioner  may  deem  necessary 
to  prevent  such  illegal  sales,  and  in  addition  the  commissioner 
shall  require  a  record  and  report  of  sales. 

Commissioner  May  Make  Analysis  if  Necessary: — Sec.  5. 

Whenever  the  commissioner  has  reason  to  believe  that  any 
article  mentioned  in  section  4  does  not  correspond  with  the 
descriptions  and  limitations  therein  provided  he  shall  cause  an 
analysis  of  said  article  to  be  made,  and  if,  upon  such  analysis, 
the  commissioner  shall  find  that  said  article  does  not  so  corre- 
spond, he  shall  give  not  less  than  fifteen  days'  notice  in  writing 
to  the  person  who  is  manufacturer  thereof  to  show  cause  why 
said  article  should  not  be  dealt  with  as  an  intoxicating  liquor, 
such  notice  to  be  served  personally  or  by  registered  mail,  as 
the  commissioner  may  determine,  and  sliall  specify  the  time 
when,  the  place  where,  and  the  name  of  the  agent  or  official 
before  whom  such  person  is  required  to  appear. 

If  the  manufacturer  of  said  article  fails  to  show  to  the 
satisfaction  of  the  commissioner  that  the  article  corresponds 
to  the  descriptions  and  limitations  provided  in  section  4  of  this 
title  his  permit  to  manufacture  and  sell  such  article  shall  be 
revoked.  The  manufacturer  may  by  appropriate  proceeding 
in  a  court  of  equity  have  the  action  of  the  commissioner 
reviewed,  and  the  court  may  affirm,  modify,  or  reverse  the 
finding  of  the  commissioner  as  the  facts  and  law  of  the  case 
may  warrant,  and  during  the  pendency  of  such  proceedings 
may  restrain  the  manufacture,  sale  or  other  disposition  of 
such  article. 

Permit  Must  Be  Obtained: — Sec.  6.  No  one  shall  manu- 
facture, sell,  purchase,  transport,  or  prescribe  any  licjuor  with- 
out first  obtaining  a  permit  from  the  commissioner  so  to  do, 
except  that  a  person  may  without  a  permit,  purchase  and  use 


182  THE  ACT 

liquor  for  medicinal  purposes  when  prescribed  by  a  physician 
as  herein  provided,  and  except  that  any  person  who  in  the 
opinion  of  the  commissioner  is  conducting  a  bona  fide  hospital 
or  sanatorium  engaged  in  the  treatment  of  persons  suffering 
from  alcoholism,  may  under  such  rules,  regulations,  and  condi- 
tions as  the  commissioner  shall  prescribe,  purchase  and  use,  in 
accordance  with  the  methods  in  use  in  such  institution,  liquor, 
to  be  administered  to  the  patients  of  such  institution  under  the 
direction  of  a  duly  qualified  physician  employed  by  such 
institution. 

All  permits  to  manufacture,  prescribe,  sell  or  transport 
liquor,  may  be  issued  for  one  year,  and  shall  expire  on  the  31st 
day  of  December  next  succeeding  the  issuance  thereof:  Pro- 
vided, that  the  commissioner  may  without  formal  application 
or  new  bond  extend  any  permit  granted  under  this  act  or  laws 
now  in  force  after  August  31  in  any  year  to  December  31  of 
the  succeeding  year :  Provided,  further,  that  permits  to  pur- 
chase liquor  for  the  purpose  of  manufacturing  or  selling  as 
provided  in  this  act  shall  not  be  in  force  to  exceed  ninety  days 
from  the  day  of  issuance.  A  permit  to  purchase  liquor  for  any 
other  purpose  shall  not  be  in  force  to  exceed  thirty  days. 
Permits  to  purchase  liquor  shall  specify  the  quantity  and  kind 
to  be  purchased  and  the  purpose  for  which  it  is  to  be  used.  No 
permit  shall  be  issued  to  any  person  who  within  one  year  prior 
to  the  application  therefor  or  issuance  thereof  shall  have  vio- 
lated the  terms  of  any  permit  issued  under  this  title  or  any 
law  of  the  United  States  or  of  any  state  regulating  trafiSc  in 
liquor.  No  permit  shall  be  issued  to  anyone  to  sell  liquor  at 
retail,  unless  the  sale  is  to  be  made  through  a  pharmacist 
designated  in  the  permit  and  duly  licensed  under  the  laws 
of  his  state  to  compound  and  dispense  medicine  prescribed  by 
a  duly  licensed  physician.  No  one  shall  be  given  a  permit  to 
prescribe  liquor  unless  he  is  a  physician  duly  licensed  to  prac- 
tice medicine  and  actively  engaged  in  the  practice  of  such 
profession.  Every  permit  shall  be  in  writing,  dated  when 
issued  and  signed  by  the  commissioner  or  his  authorized  agent. 
It  shall  give  the  name  and  address  of  the  person  to  whom  it  is 
issued  and  shall  designate  and  limit  the  acts  that  are  permitted 
and  the  time  when  and  place  where  such  acts  may  be  per- 
formed.    No  permit  shall  be  issued  until  a  verified,  written 


THE  ACT  183 

application  shall  have  been  made  therefor,  setting  forth  the 
qualification  of  the  applicant  and  the  purpose  for  which  the 
liquor  is  to  be  used. 

The  commissioner  may  prescribe  the  form  of  all  permits 
and  applications  and  the  facts  to  be  set  forth  therein.  Before 
any  permit  is  granted  the  commissioner  may  require  a  bond  in 
such  form  and  amount  as  he  may  prescribe  to  insui'e  compli- 
ance with  the  terms  of  the  permit  and  the  provisions  of  this 
title.  In  the  event  of  the  refusal  by  the  commissioner  of  any 
application  for  a  permit,  the  applicant  may  have  a  review  of 
his  decision  before  a  court  of  equity  in  the  manner  provided 
in  section  5  hereof. 

Nothing  in  this  title  shall  be  held  to  apply  to  the  manu- 
facture, sale,  transportation,  importation,  possession,  or  dis- 
tribution of  wine  for  sacramental  purposes,  or  like  religious 
rites,  except  section  6  (save  as  the  same  requires  a  permit  to 
purchase)  and  section  10  hereof  and  the  provisions  of  this  act 
prescribing  penalties  for  the  violation  of  either  of  said  sec- 
tions. No  person  to  whom  a  permit  may  be  issued  to  manu- 
facture, transport,  import,  or  sell  wines  for  sacramental  pur- 
poses or  like  religious  rites  shall  sell,  barter,  exchange,  or 
furnish  any  such  to  any  person  not  a  rabbi,  minister  of  the 
gospel,  priest,  or  an  officer  duly  authorized  for  the  purpose  by 
any  church  or  congregation,  nor  to  any  such  except  upon  an 
application  duly  subscribed  by  him,  which  application,  authen- 
ticated as  regulations  may  prescribe,  shall  be  filed  and  pre- 
served by  the  seller.  The  head  of  any  conference  or  diocese 
or  other  ecclesiastical  jurisdiction  may  designate  any  rabbi, 
minister,  or  priest  to  supervise  the  manufacture  of  wine  to  be 
used  for  the  purposes  and  rites  in  this  section  monlioncd,  and 
the  person  so  designated  may,  in  the  discretion  of  the  eoininis- 
sioner  be  granted  a  permit  to  supervise  such  manufacture. 

Physician  Holding  Permit,  Only  One  Authorized  to  Give 
Prescription: — Sec.  7.  No  one  but  a  j)liysiiM;iii  liohling  a  pcr- 
rnil  1o  prcscrihc  li(iuf)!'  shall  issue  any  prescription  foi-  licpior. 
And  no  physician  sliall  prescritie  li(|U()r  unless  after  careful 
physical  examination  ol"  the  person  for  whose  use  such 
prescription  is  sr)ught,  or  if  such  examination  is  found 
impracticable,  then  upon  the  best  information  ol)tainal)h',  he 
in  good  faith  believes  tiiat  tiie  use  of  such  licpior  as  a   medicine 


184  THE  ACT 

by  such  person  is  necessary  and  will  afford  relief  to  him  from 
some  known  ailment.  No  more  than  a  pint  of  spirituous  liquor 
to  be  taken  internally  shall  be  prescribed  for  use  by  the  same 
person  within  any  period  of  ten  days  and  no  prescription  shall 
be  filled  more  than  once.  Any  pharmacist  filing  a  prescription 
shall  at  the  same  time  indorse  upon  it  over  his  own  signature 
the  word  "cancelled,"  together  with  the  date  when  the  liquor 
was  delivered,  and  then  make  the  same  a  part  of  the  record 
that  he  is  required  to  keep  as  herein  provided. 

Every  physician  who  issued  a  prescription  for  liquor  shall 
keep  a  record,  alphabetically  arranged  in  a  book  prescribed  by 
the  commissioner,  which  shall  show  the  date  of  issue,  amount 
prescribed,  to  whom  issued,  the  purpose  or  ailment  for  which 
it  is  to  be  used  and  directions  for  use,  stating  the  amount  and 
frequency  of  the  dose. 

Commissioner  Must  Issue  Blank  for  Prescription; — Sec.  8. 

The  commissioner  shall  cause  to  be  printed  blanks  for  the 
prescriptions  herein  required,  and  he  shall  furnish  the  same, 
free  of  cost,  to  physicians  holding  permits  to  prescribe.  The 
prescription  blanks  shall  be  printed  in  book  form  and  shall  be 
numbered  consecutively  from  one  to  one  hundred,  and  each 
book  shall  be  given  a  number,  and  the  stubs  in  each  book  shall 
carry  the  same  numbers  as  and  be  copies  of  the  prescriptions. 
The  books  containing  such  stubs  shall  be  returned  to  the  com- 
missioner when  the  prescription  blanks  have  been  used,  or 
sooner,  if  directed  by  the  commissioner.  All  unused,  mutilated, 
or  defaced  blanks  shall  be  returned  with  the  book.  No  physi- 
cian shall  prescribe  and  no  pharmacist  shall  fill  any  prescrip- 
tion for  liquor  except  on  blanks  so  provided,  except  in  cases 
of  emergency,  in  which  event  a  record  and  report  shall  be 
made  and  kept  as  in  other  cases. 

Permit  May  Be  Revoked: — Sec.  9.  If  at  any  time  there 
shall  be  filed  with  the  commissioner  a  complaint  under  oath 
setting  forth  facts  showing,  or  if  the  commissioner  has  reason 
to  believe,  that  any  person  who  has  a  permit  is  not  in  good 
faith  conforming  to  the  provisions  of  this  act,  or  has  violated 
the  laws  of  any  state  relating  to  intoxicating  liquor,  the  com- 
missioner or  his  agent  shall  immediately  issue  and  order  citing 
such  person  to  appear  before  him  on  a  day  named,  not  more 
than  thirty  and  not  less  than  fifteen  days  from  the  date  of 


THE  ACT  185 

service  upon  such  permittee  of  a  copy  of  the  citation,  which 
citation  shall  be  accompanied  by  a  copy  of  such  complaint,  or 
in  the  event  that  the  proceedings  be  initiated  by  the  commis- 
sioner with  a  statement  of  the  facts  constituting  the  violation 
charcred,  at  which  time  a  hearing;  shall  be  had  unless  continued 
for  cause.  Such  hearings  shall  be  held  within  the  judicial 
district  and  within  fifty  miles  of  the  place  where  the  offense 
is  alleged  to  have  occurred,  unless  parties  agree  on  another 
place.  If  it  be  found  that  such  person  has  been  guilty  of 
wilfully  violating  any  such  laws,  as  charged,  or  has  not  in 
good  faith  conformed  to  the  provisions  of  this  act,  such  permit 
shall  be  revoked,  and  no  permit  shall  be  granted  to  such  person 
Avithin  one  year  thereafter.  Should  the  permit  be  revoked  by 
the  commissioner,  the  permittee  may  have  a  review  of  his 
decision  before  a  court  of  equity  in  the  manner  provided  in 
section  5  hereof.  During  the  pendency  of  such  action  such 
permit  shall  be  temporarily  revoked. 

Permanent  Record  Must  Be  Made  of  Sales,  Etc. : — Sec.  10. 

No  person  shall  manufacture,  purehase  for  sale,  sell,  or  trans- 
port any  liquor  without  making  at  the  time  a  permanent 
record  thereof  showing  in  detail  the  amount  and  kind  of  liquor 
manufactured,  purcha.sed,  sold,  or  transported,  together  with 
the  names  and  addresses  of  the  persons  to  whom  sold,  in  case 
of  sale,  and  the  consignor  and  consignee  in  case  of  transporta- 
tion, and  the  time  and  place  of  such  manufacture,  sale,  or 
transportation.  The  commissioner  may  prescribe  the  form  of 
such  record,  which  shall  at  all  times  be  open  to  inspection  as 
in  this  act  provided. 

Wholesale  Druggist  Cannot  Sell  at  Retail: — Sec.  11.  All 
manufacturers  and  wholesale  or  retail  druggists  shall  keep  as  a 
part  of  the  records  retjuired  of  them  a  copy  of  all  pci-iiiits  lo 
purchase  on  which  a  sale  is  made,  and  no  manufacturer  or 
wholesale  druggist  shall  sell  or  otherwise  dispose  of  any  liquor 
except  at  wholesale  and  only  to  persons  having  permits  to 
purchase  in  such  quantities. 

Label  Must  Be  Attached  to  Every  Container: — Sec.  12.  All 
persons  manufacturing  liijuor  lor  sale  under  the  provisions 
of  this  title  shall  securely  and  permanently  attach  to  every 
container  thereof,  as  the  same  is  manufactured,  a  label  stating 


186  THE  ACT 

the  name  of  manufacturer,  kind  and  quantity  of  liquor  con- 
tained therein,  and  the  date  of  its  manufacturer,  together  with 
the  number  of  the  permit  authorizing  the  manufacture  thereof; 
and  all  persons  possessing  such  liquor  in  wholesale  quantities 
shall  securely  keep  and  maintain  such  label  thereon;  and  all 
persons  selling  at  wholesale  shall  attach  to  every  package  of 
liquor,  when  sold,  a  label  setting  forth  the  kind  and  quantity 
of  liquor  contained  therein,  by  whom  manufactured,  the  date 
of  sale,  and  the  person  to  whom  sold ;  which  label  shall  like- 
wise be  kept  and  maintained  thereon  until  the  liquor  is  used 
for  the  purpose  for  which  such  sale  was  authorized. 

Every  Carrier  Must  Make  Record  of  Shipment  When 
Received: — Sec.  13.  It  shall  be  the  duty  of  every  carrier  to 
make  a  record  at  the  place  of  shipment  of  the  receipt  of  any 
liquor  transported,  and  he  shall  deliver  liquor  only  to  persons 
who  present  to  the  carrier  a  verified  copy  of  a  permit  to  pur- 
chase which  shall  be  made  a  part  of  the  carrier's  permanent 
record  at  the  office  from  which  delivery  is  made. 

The  agent  of  the  common  carrier  is  hereby  authorized  to 
administer  the  oath  of  the  consignee  in  verification  of  the  copy 
of  the  permit  presented,  who,  if  not  personally  known  to  the 
agent,  shall  be  identified  before  the  delivery  of  the  liquor  to 
him.  The  name  and  the  address  of  the  person  identifying  the 
consignee  shall  be  included  in  the  record. 

Shipper  Must  Notify  Carrier  of  Nature  of  Shipment:— 
Sec.  14.  It  shall  be  unlawful  for  a  person  to  use  or  induce 
any  carrier,  or  any  agent,  or  employe  thereof,  to  carry  or  ship 
any  package  or  receptacle  containing  liquor  without  notifying 
the  carrier  of  the  true  nature  and  character  of  the  shipment. 
No  carrier  shall  transport  nor  shall  any  person  receive  liquor 
from  a  carrier  unless  there  appears  on  the  outside  of  the  pack- 
age containing  such  liquor  the  following  information:  Name 
and  address  of  the  consignor  or  seller,  name  and  address  of 
the  consignee,  kind  and  quantity  of  liquor  contained  therein, 
and  number  of  the  permit  to  purchase  or  ship  the  same,  to- 
gether with  the  name  and  address  of  the  person  using  the 
permit. 

Unlawful  for  Carrier  to  Accept  Shipment  Upon  False 
Statement: — Sec.  15.  It  shall  be  unlawful  for  any  consignee 
to  accept  or  receive  any  package  containing  any  liquor  upon 


THE  ACT  187 

which  appears  a  statement  known  to  him  to  be  false,  or  for 
any  carrier  or  other  person  to  eonsifrn,  ship,  transjiort,  or 
deliver  any  such  packajre,  knowing  such  statement  to  be  false. 

Order  to  Ship  Must  Be  to  an  Actual  Bona  Fide  Consignee : 
— Sec.  16.  It  shall  be  unlawful  to  give  any  carrier  or  any 
officer,  agent,  or  person  acting  or  assuming  to  act  for  such 
carrier  an  order  requiring  the  delivery  to  any  person  of  any 
liquor  or  package  containing  liquor  consigned  to,  or  purport- 
ing or  claimed  to  be  consigned  to  a  person,  when  the  purpose 
of  the  order  is  to  enable  any  person  not  an  actual  bona  fide 
consignee  to  obtain  such  liquor. 

Unlawful  to  Advertise  Sale,  Etc.: — Sec.  17.  It  shall  be 
unlawful  to  advertise  anywhere,  or  by  any  means,  or  method, 
liquor,  or  the  manufacture,  sale,  keeping  for  sale  or  furnisliing 
of  the  same,  or  where,  how,  from  whom,  or  at  what  price  the 
same  may  be  obtained.  No  one  shall  permit  any  sign  or  bill- 
board containing  such  advertisement  to  remain  upon  one's 
premises.  But  nothing  herein  shall  prohibit  manufacturers 
and  wholesale  druggists  holding  permits  to  sell  liquor  from 
furnishing  price  lists,  with  description  of  liquor  for  sale,  to 
persons  permitted  to  purchase  liquor,  or  from  advertising 
alcohol  in  business  publications  or  trade  journals  circulating 
generally  among  manufacturers  of  lawful  alcoholic  perfumes, 
toilet  preparations,  flavoring  extracts,  medicinal  preparations, 
and  like  articles :  Provided,  however,  that  nothing  in  this  act 
or  in  the  act  making  appropriations  for  the  Post  Office  Depart- 
ment, approved  March  3,  1917  (Thirty-ninth  Statutes  at  Large, 
Part  I,  page  1058,  et  seq.)  shall  apply  to  newspapers  published 
in  foreign  countries  Avhen  mailed  to  this  country. 

Unlawful  to  Advertise  for  Sale  Utensil  or  Contrivance : — 
Sec.  18.  It  sliall  he  uiihiwrul  to  advcrlisc,  iiiaiiut'act  un',  sell 
or  possess  for  sale  any  utensil,  contrivance,  macliiiic,  prepara- 
tion, compound,  tablet,  substance,  fornnila,  direction,  or  recipe 
aflvortiscfl,  designed,  or  intended  for  the  use  in  the  unlawful 
ni;iiiiir;i('t lire  ol'  inl()xi(;ating  liquor. 

No  Person  Shall  Knowingly  Receive  Order  from  Any 
Person  for  Sale: — Sec.  19.  No  person  siiall  solicit  or  receive, 
nor  knowingly  ])erniit  liis  emj)h)yee  to  solicit  or  receive,  from 


188  THE  ACT 

any  person  any  order  for  liquor  or  give  any  information  of 
how  liquor  may  be  obtained  in  violation  of  this  act. 

Any  Person  Injured  by  Intoxicated  Person  Has  Right  of 
Damages: — Sec,  20.  Any  person  who  shall  be  injured  in 
person,  property,  means  of  support,  or  otherwise  by  any  in- 
toxicated person,  or  by  reason  of  the  intoxication  of  any 
person,  whether  resulting  in  his  death  or  not,  shall  have  a 
right  of  action  against  any  person  who  shall,  by  unlawfully 
selling  to  or  unlawfully  assisting  in  procuring  liquor  for  such 
intoxicated  person,  have  caused  or  contributed  to  such  intoxi- 
cation, and  in  any  such  action  such  person  shall  have  the  right 
to  recover  actual  and  exemplary  damages.  In  case  of  the 
death  of  either  party,  the  action  or  the  right  of  action  given 
by  this  section  shall  survive  to  or  against  his  or  her  executor 
or  administrator,  and  the  amount  so  recovered  by  either  wife 
or  child  shall  be  his  or  her  sole  and  separate  property.  Such 
action  may  be  brought  in  any  court  of  competent  jurisdiction. 
In  any  case  where  parents  shall  be  entitled  to  such  damages, 
either  the  father  or  mother  may  sue  alone  therefor,  but 
recovery  by  one  of  such  parties  shall  be  a  bar  to  suit  brought 
by  the  other. 

Place  Where  Liquor  is  Kept  is  Declared  to  be  Common 
Nuisance: — Sec.  21,  Any  room,  house,  building,  boat,  vehicle, 
structure  or  place  where  intoxicating  liquor  is  manufactured, 
sold,  kept,  or  bartered  in  violation  of  this  title,  and  all  intoxi- 
cating liquor  and  property  kept  and  used  in  maintaining  the 
same,  is  hereby  declared  to  be  a  common  nuisance,  and  any 
person  who  maintains  such  a  common  nuisance  shall  be  guilty 
of  a  misdemeanor  and  upon  conviction  thereof  shall  be  fined 
not  more  than  $1,000  or  be  imprisoned  for  not  more  than  one 
year,  or  both.  If  a  person  has  knowledge  or  reason  to  believe 
that  his  room,  house,  building,  boat,  vehicle,  structure,  or  place 
is  occupied  or  used  for  the  manufacture  or  sale  of  liquor  con- 
trary to  the  provision  of  this  title,  and  suffers  the  same  to  be 
so  occupied  or  used,  such  room,  house,  building,  boat,  vehicle, 
structure  or  place  shall  be  subject  to  a  lien  for  and  may  be  sold 
to  pay  all  fines  and  costs  assessed  against  the  person  guilty  of 
such  nuisance  for  such  violation,  and  any  such  lien  may  be  en- 
forced by  action  in  any  court  having  jurisdiction. 


THE  ACT  1S9 

Action  to  Enjoin  May  be  Brought  in  the  Name  of  the 
United  States. — Sec.  22.  x\n  action  to  enjoin  any  nuisance 
defined  in  thi.s  title  may  be  brought  in  the  name  of  the  United 
States  by  the  Attorney  General  of  the  United  States  or  by  any 
United  States  attorney  or  any  prosecuting  attorney  of  -any 
state,  or  any  subdivision  thereof,  or  by  tlie  commissioner  or 
his  deputies  or  assistants.  Such  action  shall  be  brought  and 
tried  as  an  action  in  equity  and  may  be  brought  in  any  court 
having  jurisdiction  to  hear  and  determine  equity  cases.  If 
it  is  made  to  appear  by  affidavits  or  otherwise,  to  the  satis- 
faction of  the  court,  or  judge  in  vacation,  that  such  nuisance 
exists,  a  temporary  writ  of  injunction  shall  forthwith  issue 
restraining  the  defendant  from  conducting  or  permitting  the 
continuance  of  such  nuisance  until  the  conclusion  of  the  trial. 
If  a  temporary  injunction  is  prayed  for,  the  court  may  issue 
an  order  restraining  the  defendant  and  all  other  persons  from 
removing  or  in  any  way  interfering  with  the  liquor  or  fixtures, 
or  other  things  used  in  connection  with  the  violation  of  this  Act 
constituting  such  nuisance.  No  bond  shall  be  required  in  in- 
stituting such  proceedings.  It  shall  not  be  necessary  for  the 
court  to  find  the  property  involved  was  being  unlawfully  used 
as  aforesaid  at  the  time  of  the  hearing,  but  on  finding  that  the 
material  allegations  of  the  petition  are  true,  the  court,  shall 
order  that  no  liquors  shall  be  manufactured,  sold,  bartered,  or 
stored  in  such  room,  house,  building,  boat,  vehicle,  structure, 
or  place,  or  any  part  thereof.  And  upon  judgment  of  the  court 
ordering  such  nuisance  to  be  abated,  the  court  may  order  that 
the  room,  house,  building,  structure,  boat,  vehicle,  or  place 
shall  not  be  occupied  or  used  for  one  year  thereafter;  but  the 
court  may,  in  its  discretion,  permit  it  to  be  occupied  or  used 
if  the  owner,  lessee,  tenant,  or  occupant  thereof  shall  give  bond 
with  sufficient  surety,  to  be  approved  by  the  court  making  the 
order,  in  the  penal  and  liquidated  sum  of  not  less  than  $500 
nor  more  than  $1,000,  payable  to  the  United  States,  and  con- 
ditioned that  intoxicating  liquor  will  not  thereafter  be  manu- 
factured, sold,  bartered,  kept,  or  otherwise  disposed  of  therein 
or  thereon,  and  that  he  will  pay  all  fines,  costs,  and  damages 
that  may  be  assessed  for  any  violation  of  this  title  u[)on  said 
property. 


190  THE  ACT 

Any  Intent  to  Sell  Liquor  May  be  Enjoined: — Sec.  23. 

That  any  person  who  shall,  with  intent  to  effect  a  sale  of  liquor, 
by  himself,  his  employee,  servant,  or  agent,  for  himself  or  any 
person,  company,  or  corporation,  keep  or  carry  around  on  his 
person,  or  in  a  vehicle,  or  other  conveyance  whatever,  or  leave 
in  a  place  for  another  to  secure,  any  liquor,  or  who  shall  travel 
to  solicit,  or  solicit,  or  take,  or  accept  orders  for  the  sale,  ship- 
ment, or  delivery  of  liquor  in  violation  of  this  title  and  is  guilty 
of  a  nuisance  and  may  be  restrained  by  injunction,  temporary 
and  permanent,  from  doing  or  continuing  to  do  any  of  said 
acts  or  things.  In  such  proceedings  it  shall  not  be  necessary 
to  show  any  intention  on  the  part  of  the  accused  to  continue 
such  violations  if  the  action  is  brought  within  sixty  days  fol- 
lowing any  such  violation  of  the  law.  For  removing  and  sell- 
ing property  in  enforcing  this  act  the  officers  shall  be  entitled 
to  charge  and  receive  the  same  fee  as  the  sheriff  of  the  county 
would  receive  for  levying  upon  and  selling  property  under 
execution,  and  for  closing  the  premises  and  keeping  them 
closed  a  reasonable  sum  shall  be  allowed  by  the  court.  Any 
violation  of  this  title  upon  any  leased  premises  by  the  lessee 
or  occupant  thereof  shall,  at  the  option  of  the  lessor,  work  a 
forfeiture  of  the  lease. 

A  Violation  of  an  Injunction  May  be  Summarily  Punished 
as  Contempt: — Sec.  24.  In  the  case  of  the  violation  of  any 
injunction,  temporary  or  permanent,  granted  pursuant  to  the 
provisions  of  this  title,  the  court,  or  in  vacation,  a  judge  there- 
of, may  summarily  try  and  punish  the  defendant.  The  pro- 
ceedings for  punishment  for  contempt  shall  be  commenced  by 
filing  with  the  clerk  of  the  court  from  which  such  injunction 
issued  information  under  oath  setting  out  the  alleged  facts 
constituting  the  violation,  whereupon  the  court  or  judge  shall 
forthwith  cause  a  warrant  to  issue  under  which  the  defendant 
shall  be  arrested.  The  trial  may  be  had  upon  affidavits,  or 
either  party  may  demand  the  production  and  oral  examination 
of  the  witnesses.  Any  person  found  guilty  of  contempt  under 
the  provisions  of  this  section  shall  be  punished  by  a  fine  of  not 
less  than  $500  nor  more  than  $1,000,  or  by  imprisonment  of 
not  less  than  thirty  days  nor  more  than  twelve  months,  or  by 
both  fine  and  imprisonment. 


THE  ACT  191 

Violation  to  Have  in  Possession  Anything  to  Aid  in  Manu- 
facture:— Sec.  25.  It  shall  be  unlawful  to  have  or  possess  any 
liquor  or  property  designed  for  the  manufacture  of  liquor  in- 
tended for  use  in  violating  this  title  or  which  has  been  so 
used,  and  no  property  rights  shall  exist  in  any  such  liquor  or 
property.  A  search  warrant  may  issue  as  provided  in  Ttitle 
XI  of  public  law  numbered  24  of  the  sixty-fifth  congress,  ap- 
proved June  15,  1917,  and  such  liquor,  the  containers  thereof, 
and  such  property  so  seized  shall  be  subject  to  such  disposition 
as  the  court  may  make  thereof.  If  it  is  found  that  such  liquor 
or  property  was  so  unlawfully  held  or  possessed,  or  had  been 
so  unlawfully  used,  the  liquor,  and  all  property  designed  for  the 
unlawful  manufacture  of  liquor,  shall  be  destroyed,  unless  the 
court  shall  otherwise  order.  No  search  warrant  shall  issue 
to  search  any  private  dwelling  occupied  as  such  unless  it  is 
being  used  for  the  unlawful  sale  of  intoxicating  liquor,  or 
unless  it  is  in  part  used  for  some  business  purposes  such  as  a 
store,  shop,  saloon,  restaurant,  hotel,  or  boarding  house.  The 
term  "private  dwelling"  shall  be  construed  to  include  the 
room  or  rooms  used  and  occupied  not  transiently  but  solely 
as  a  residence  in  an  apartment  house,  hotel,  or  boarding  house. 
The  property  seized  on  any  such  warrant  shall  not  be  taken 
from  the  officer  seizing  the  same  on  any  writ  of  replevin  or 
other  like  process. 

Officer  May  Take  Vehicle  Caught  in  Transporting 
Liquor: — Sec.  26.  When  the  commissioner,  his  assistants,  in- 
spectors, or  any  officer  of  the  law  shall  discover  any  person  in 
the  act  of  transporting,  in  violation  of  the  law,  intoxicating 
liquors,  in  any  wagon,  buggy,  automobile,  water  or  air  craft, 
or  other  vehicle,  it  shall  be  his  duty  to  seize  any  and  all  in- 
toxicating liquors  found  therein  being  transported  contrary 
to  law.  Wlienever  intoxicating  liquors  transported  or  pos- 
sessed illegally  shall  be  seized  by  an  officer  he  shall  take  pos- 
session of  the  vehicle  and  team  or  automobile,  boat,  air  or 
water  craft,  or  any  other  conveyance,  and  shall  arrest  any 
person  in  charge  thereof.  Such  officer  shall  at  once  proceed 
against  the  person  arrested  under  the  provi.sions  of  this  title 
in  any  court  having  competent  jurisdiction;  but  the  said  ve- 
hicle or  conveyance  shall  be  returned  to  the  owner  upon  exe- 
cution by  him  of  a  good  and  valid  bond,  with  sufficient  sureties, 


192  THE  ACT 

in  a  sum  double  the  value  of  the  property,  which  said  bond 
shall  be  approved  by  said  officer  and  shall  be  conditioned  to 
return  said  property  to  the  custody  of  said  officer  on  the  day 
of  trial  to  abide  the  judgment  of  the  court.  The  court  upon 
conviction  of  the  person  so  arrested  shall  order  the  liquor  de- 
stroyed, and  unless  good  cause  to  the  contrary  is  showTi  by  the 
owner,  shall  order  a  sale  by  public  auction  of  the  property 
seized,  and  the  officer  making  the  sale,  after  deducting  the  ex- 
penses of  keeping  the  property,  the  fee  for  the  seizure,  and  the 
cost  of  the  sale,  shall  pay  all  liens,  according  to  their  priorities, 
which  are  established,  by  intervention  or  otherwise,  at  said 
hearing  or  in  other  proceeding  brought  for  said  purpose,  as 
being  bona  fide  and  as  having  been  created  without  the  lienor 
having  any  notice  that  the  carrying  vehicle  was  being  used  or 
was  to  be  used  for  illegal  transportation  of  liquor,  and  shall 
pay  the  balance  of  the  proceeds  into  the  treasury  of  the  United 
States  as  miscellaneous  receipts.  All  liens  against  property 
sold  under  the  provisions  of  this  section  shall  be  transferred 
from  the  property  to  the  proceeds  of  the  sale  of  the  property. 
If,  however,  no,  one  shall  be  found  claiming  the  team,  vehicle, 
water  or  air  craft,  or  automobile,  the  taking  of  the  same,  with 
a  description  thereof,  shall  be  advertised  in  some  newspaper 
published  in  the  city  or  county  where  taken  or  if  there  be  no 
newspaper  published  in  such  city  or  county,  in  a  newspaper 
having  circulation  in  the  county,  once  a  week  for  two  weeks 
and  by  handbills  posted  in  three  public  places  near  the  place 
of  seizure,  and  if  no  claimant  shall  appear  within  ten  days 
after  the  last  publication  of  the  advertisement  the  property 
shall  be  sold  and  the  proceeds,  after  deducting  the  expenses 
and  costs,  shall  be  paid  into  the  treasury  of  the  United  States 
as  miscellaneous  receipts. 

The  Court  May  Deliver  Unlawful  Liquor  to  Any  Depart- 
ment:— Sec.  27.  In  all  cases  in  which  intoxicating  liquors 
may  be  subject  to  be  destroyed  under  the  provisions  of  this 
Act  the  court  shall  have  jurisdiction  upon  the  application  of 
the  United  States  attorney  to  order  them  delivered  to  any  de- 
partment or  agency  of  the  United  States  government  for  medici- 
nal, mechanical,  or  scientific  uses,  or  to  order  the  same  sold  at 
private  sale  for  such  purposes  to  any  person  having  a  permit  to 
purchase  liquor  to  be  covered  into  the  treasury  of  the  United 


THE  ACT  193 

States  to  the  credit  of  miscellaneous  receipts,  and  all  liquor 
heretofore  seized  in  any  suit  or  proceedinof  brougrht  for  viola- 
tion may  likewise  be  so  disposed  of,  if  not  claimed  within  sixty 
days  from  the  date  this  section  takes  effect. 

All  Officers  Authorized  to  Enforce  the  Criminal  Laws  May 
Act: — Sec.  28.  The  commissioner,  his  assistants,  agents  and 
inspectors,  and  all  other  officers  of  the  United  States,  whose 
duty  it  is  to  enforce  criminal  laws,  shall  have  all  the  power 
and  protection  in  the  enforcement  of  this  act  or  any  provisions 
thereof  which  is  conferred  by  law  for  the  enforcement  of  ex- 
isting laws  relating  to  the  manufacture  or  sale  of  intoxicating 
liquors  under  the  law  of  the  United  States. 

Punishment  for  Manufacturing,  Etc. : — Sec.  29.  Any  per- 
son who  manufactures  or  sells  liquor  in  violation  of  this  title 
shall  for  a  first  offense  be  fined  not  more  than  $1,000,  or  im- 
prisoned not  exceeding  six  months,  and  for  a  second  or  subse- 
quent offense  shall  be  fined  not  less  than  $200  nor  more  than 
$2,000  and  be  imprisoned  not  less  than  one  month  nor  more 
than  five  years. 

Any  person  violating  the  provisions  of  any  permit,  or  avIio 
makes  any  false  record,  report,  or  affidavit  required  by  this 
title,  or  violates  any  of  the  provisions  of  this  title,  for  which 
offen.se  a  special  penalty  is  not  prescribed,  shall  be  fined  for  a 
first  offense  not  more  than  $500;  for  a  second  offense  not  less 
than  $100  nor  more  than  $1,000,  or  be  imprisoned  not  more  than 
ninety  days ;  for  any  subsequent  offense  he  shall  be  fined  not 
less  than  $500  and  be  imprisoned  not  less  than  three  months 
nor  more  than  two  years.  It  shall  be  the  duty  of  the  prose- 
cuting officer  to  ascertain  whether  the  defendant  has  been  pre- 
viously convicted  and  to  plead  the  prior  conviction  in  tlie  affi- 
davit, information,  or  indictment.  The  penalties  provided  in 
this  act  against  the  manufacture  of  li(iuor  without  a  permit 
shall  not  apply  to  a  person  for  manufacturing  non-intoxicating 
cider  and  fruit  juices  exclusively  for  use  in  his  home,  but  such 
cider  and  fruit  juices  shall  not  be  sold  or  delivered  except  to 
persons  having  permits  to  manufaucture  vinegar. 

No  Person  Can  Excuse  Himself  on  Ground  That  it  Will 
Incriminate: — Sec.  30.  No  jjcrson  shall  be  exciisod,  on  the 
ground  that  it  may  tend  to  incriminate  him  or  subject  him  to  a 


194  THE  ACT 

penalty  or  forfeiture,  from  attending  and  testifying  or  pro- 
ducing books,  papers,  documents,  and  other  evidence 
in  obedience  to  a  subpoena  of  any  court  in  any  suit  or  proceed- 
ing based  upon  or  growing  out  of  any  alleged  violation  of  this 
act;  but  no  natural  person  shall  be  prosecuted  or  subjected  to 
any  penalty  or  forfeiture  for  or  on  account  of  any  transaction, 
matter,  or  thing  as  to  which,  in  obedience  to  a  subpoena  and 
under  oath,  he  may  so  testify  or  produce  evidence,  but  no  per- 
son shall  be  exempt  from  prosecution  and  punishment  for  per- 
jury committed  in  so  testifying. 

Delivery  by  Common  Carrier — Jurisdiction  at  Point  De- 
livered to  Consignee: — Sec.  31.  In  case  of  a  sale  of  liquor 
where  the  delivery  thereof  was  made  by  a  common  or  other 
carrier  the  sale  and  delivery  shall  be  deemed  to  be  made  in  the 
county  or  district  wherein  the  delivery  was  made  by  such 
carrier  to  the  consignee,  his  agent  or  employee,  or  in  the  county 
or  district  wherein  the  sale  was  made,  or  from  which  the  ship- 
ment was  made  and  prosecution  for  such  sale  or  delivery  may 
be  had  in  any  such  county  or  district. 

Several  Counts  May  be  Joined  and  Conviction  for  All 
Had: — Sec.  32.  In  any  affidavit,  information,  or  indictment 
for  the  violation  of  this  act,  separate  offenses  may  be  united 
in  separate  counts  and  the  defendant  may  be  tried  on  all  at 
one  trial  and  the  penalty  for  all  oifenses  may  be  imposed.  It 
shall  not  be  necessary  in  any  affidavit,  information,  or  indict- 
ment to  give  the  name  of  the  purchaser  or  to  include  any  de- 
fensive negative  averments,  but  it  shall  be  sufficient  to  state 
that  the  act  complained  of  was  then  and  there  prohibited  and 
unlawful,  but  this  provision  shall  not  be  construed  to  preclude 
the  trial  court  from  directing  the  furnishing  the  defendant  a 
bill  of  particulars  when  it  deems  it  proper  to  do  so. 

After  Feb.  1,  1920,  Possession  Prima  Facie  Evidence  is 
Kept  for  Sale: — Sec.  33.  After  February  1,  1920,  the  posses- 
sion of  liquors  by  any  person  not  legally  permitted  under  this 
title  to  possess  liquor  shall  be  prima  facie  evidence  that  such 
liquor  is  kept  for  the  purpose  of  being  sold,  bartered,  ex- 
changed, given  away,  furnished,  or  otherwise  disposed  of  in 
violation  of  the  provisions  of  this  title.  Every  person  legally 
permitted  under  this  title  to  have  liquor  shall  report  to  the 


THE  ACT  195 

commissioner  within  ten  days  after  the  date  when  the  Eigh- 
teenth Amendment  of  the  Constitution  of  the  United  States 
goes  into  effect,  the  kind  and  amount  of  intoxicating  liquors 
in  his  possession.  But  it  shall  not  be  lawful  to  possess  liquors 
in  one's  private  dAvelliug  while  the  same  is  occupied  and  used 
by  him  as  his  dwelling  only  and  such  liquor  need  not  be  re- 
ported, provided  such  liquors  are  for  use  only  for  the  personal 
consumption  of  the  owner  thereof  and  his  family  residing  in 
such  dwelling  and  of  his  bona  fide  guests  when  entertained  by 
him  therein  ;  and  tlie  burden  of  proof  shall  be  upon  the  possessor 
in  any  action  concerning  the  same  to  prove  that  such  liquor 
was  lawfully  acquired,  possessed  and  used. 

All  Reports  Required  to  be  filed  are  Subject  to  Inspec- 
tion:— Sec.  34.  All  records  and  reports  kept  or  filed  under 
the  provisions  of  this  act  shall  be  subject  to  inspection  at  any 
reasonable  hour  by  the  commissioner  or  any  of  his  agents  or 
by  any  public  prosecutor  or  by  any  person  designated  by  him, 
or  by  any  peace  officer  in  the  state  where  the  record  is  kept, 
and  copies  of  such  records  and  reports  duly  certified  by  the 
person  with  whom  kept  or  filed  may  be  introduced  in  evidence 
with  like  effect  as  the  original  thereof,  and  verified  copies  of 
such  records  shall  be  furnished  to  the  commissioner  when  called 
for. 

All  Laws  Inconsistent  with  This  Act  Are  Repealed: — 
Sec.  35.  ,  All  provisions  of  law  tliat  are  inconsistent  with  this 
act  are  repealed  only  to  the  extent  of  such  inconsistency  and 
the  regulations  herein  provided  for  the  manufacture  or  traffic 
in  intoxicating  liquor  shall  be  construed  as  in  addition  to 
existing  laws.  This  act  shall  not  relieve  any  one  from  paying 
any  taxes  or  other  charges  imposed  upon  the  manufacture  or 
traffic  in  such  liquor.  No  liquor  revenue  stamps  or  tax  receipts 
for  any  illegal  manufacture  or  sale  shall  be  issued  in  advance, 
but  upon  evidence  of  such  illegal  manufacture  or  sale  a  tax 
shall  be  assessed  against,  and  collected  from,  the  person 
responsible  for  such  illegal  manufacture  or  sale  in  double  the 
amount  now  provided  by  law,  with  an  additional  penalty  of 
$500  on  retail  dealers  and  $1,000  on  manufacturers.  Tlie  jiay- 
ment  of  sucli  lax  ov  penalty  shall  <iive  no  right  to  engage  in 
the  manufacture  or  sale  of  sneli  li(|n(»r,  or  iclieve  anvone  from 


196  THE  ACT 

criminal  liability  nor  shall  this  act  relieve  any  person  from 
any  liability,  civil  or  criminal,  heretofore  or  hereafter  incurred 
under  existing  laws. 

The  commissioner,  with  the  approval  of  the  secretary  of 
the  treasury,  may  compromise  any  civil  cause  arising  under 
this  title  before  bringing  action  in  court ;  and  with  the 
approval  of  the  attorney  general  he  may  compromise  any  such 
cause  after  action  thereon  has  been  commenced. 

Any  Provision  of  This  Act  Invalid  Does  Not  Affect  Others : 
— Sec.  36.  If  any  provision  of  this  act  shall  be  held  invalid 
it  shall  not  be  construed  to  invalidate  other  provisions  of 
the  act. 

Liquor  May  Be  Stored  in  Bonded  Warehouses: — Sec.  37. 

Nothing  herein  shall  prevent  the  storage  in  United  States 
bonded  warehouses  of  all  liquor  manufactured  prior  to  the 
taking  effect  of  this  act,  or  prevent  the  transportation  of  such 
liquor  to  such  w^arehouses  or  to  any  wholesale  druggist  for 
sale  to  such  druggist  for  purposes  not  prohibited  when  the  tax 
is  paid,  and  permits  may  be  issued  therefor. 

A  manufacturer  of  any  beverage  containing  less  than  one- 
half  of  1  per  centum  of  alcohol  by  volume  may,  on  making 
application  and  giving  such  bond  as  the  commissioner  shall 
prescribe,  be  given  a  permit  to  develop  in  the  manufacture 
thereof  by  the  usual  methods  of  fermentation  and  fortification 
or  otherwise  a  liquid  such  as  beer,  ale,  porter,  or  wine,  con- 
taining more  than  one-half  of  1  i^er  centum  of  alcohol  by 
volume,  but  before  any  such  liquid  is  withdrawn  from  the 
factory  or  otherwise  disposed  of  the  alcoholic  contents  thereof 
shall  under  such  rules  and  regulations  as  the  commissioner 
may  prescribe  be  reduced  below  such  one-half  of  1  per  centum 
of  alcohol:  Provided,  that  such  liquid  may  be  removed  and 
transported,  under  bond  and  under  such  regulations  as  the 
commissioner  may  prescribe  from  one  bonded  plant  or  ware- 
house to  another  for  the  purpose  of  having  the  alcohol 
extracted  therefrom.  And  such  liquids  may  be  developed, 
under  permit,  by  persons  other  than  the  manufacturers  of 
beverages,  containing  less  than  one-half  of  1  per  centum  of 
alcohol  by  volume,  and  sold  to  such  manufacturers  for  conver- 
sion into  such  beverages.  The  alcohol  removed  from  such  liquid, 


THE  ACT  197 

if  evaporated  and  not  condensed  and  saved,  shall  not  be  subject 
to  tax ;  if  saved  it  shall  be  subject  to  the  same  law  as  other 
alcoholic  liquors.  Credit  shall  be  allowed  on  the  tax  due  on 
an}'  alcohol  so  saved  to  the  amount  of  any  tax  paid  upon  the 
distilled  spirits  or  brandy  used  in  the  fortification  of  the  liquor 
from  which  the  same  is  saved.  When  fortified  wines  are  made 
and  used  for  the  praduction  of  nonbeverage  alcohol,  and 
dealcoholized  wines  containing  less  than  one-half  of  1  per 
centum  of  alcohol  by  volume,  no  tax  shall  be  assessed  or  the 
spirits  used  in  such  fortification,  and  such  dealcoholized  wines 
produced  under  the  provisions  of  this  act,  whether  carbonated 
or  sparkling  wines,  but  shall  be  subject  to  the  tax  on  still 
wines  only. 

In  any  ease  where  the  manufacturer  is  charged  with  the 
manufacturing  or  selling  for  beverage  purposes  any  malt, 
vinous,  or  fermented  liquids  containing  one-half  of  1  per 
centum  or  more  of  alcohol  by  volume,  or  in  any  case  where  the 
manufacturer,  having  been  permitted  by  the  commissioner  to 
develop  a  liquid  such  as  ale,  beer,  porter,  or  wine,  containing 
more  than  one-half  of  1  per  centum  of  alcohol  by  volume  in 
the  manner  and  for  the  purpose  herein  provided,  is  charged 
with  failure  to  reduce  the  alcoholic  content  of  any  such  liquid 
below  such  one-half  of  1  per  centum  before  withdrawing  the 
same  from  the  factory,  then  in  either  such  case  the  burden  of 
proof  shall  be  on  such  manufacturer  to  show  that  such  liquid 
so  manufactured,  sold,  or  withdrawn  contains  less  than  one- 
half  of  1  per  centum  of  alcohol  by  volume.  In  any  suit  or 
proceeding  involving  the  alcoholic  content  of  any  beverage, 
the  reasonable  expense  of  analysis  of  such  beverage  shall  be 
taxed  as  costs  in  the  case. 

The  Commissioner  of  Internal  Revenue  and  Attorney 
General  May  Employ  Assistants: — Sec.  38.  The  commissioner 
of  internal  revenue  and  the  attorney  general  of  the  Unitccl 
States  are  hereby  respectively  authorized  to  appoint  and 
employ  such  assistants,  experts,  clerks,  and  otlier  emploj'oes 
in  the  District  of  Columbia  or  elsewliere,  and  to  purchase  such 
supplies  and  equipment  as  they  may  deem  necessary  for  the 
enforcement  of  tlic  provisions  of  this  act,  but  such  assistants, 
experts,  clerks,  and  other  employees,  except  such  executive 
officers   as    may   be   appointed   by   the   commissioner   or    tlie 


198  ,  THE  ACT 

attorney  general  to  have  immediate  direction  of  the  enforce- 
ment of  the  provisions  of  this  act,  and  persons  authorized  to 
issue  permits,  and  agents  and  inspectors  in  the  field  service, 
shall  be  appointed  under  the  rules  and  regulations  prescribed 
by  the  Civil  Service  Act :  Provided,  that  the  commissioner  and 
attorney  general  in  making  such  appointments  shall  give 
preference  to  those  who  have  served  in  the  military  or  naval 
service  in  the  recent  war,  if  otherwise  qualified,  and  there  is 
hereby  authorized  to  be  appropriated,  out  of  any  money  in 
the  treasury,  not  otherwise  appropriated,  such  sum  as  may  be 
required  for  the  enforcement  of  this  act  including  personal 
services  in  the  District  of  Columbia,  and  for  the  fiscal  year 
ending  June  30,  1920,  there  is  hereby  appropriated,  out  of  any 
money  in  the  treasury,  not  otherwise  appropriated,  the  sum  of 
$2,000,000  for  the  use  of  the  commissioner  of  internal  revenue 
and  $100,000  for  the  use  of  the  department  of  justice  for  the 
enforcement  of  the  provisions  of  this  act,  including  personal 
services  in  the  District  of  Columbia  and  necessary  printing 
and  binding. 

Where  Property  Is  Proceeded  Against  Summons  Must  Be 
Served  on  Accused: — Sec.  39.  In  all  cases  wherein  the  prop- 
erty of  any  citizen  is  proceeded  against  or  wherein  a  judgment 
affecting  it  might  be  rendered,  and  the  citizen  is  not  the  one 
who  in  person  violated  the  provisions  of  the  law,  summons 
must  be  issued  in  due  form  and  served  personally,  if  said 
person  is  to  be  found  within  the  jurisdiction  of  the  court. 

TITLE  III. 

Alcohol  Defined: — Sec.  1  When  used  in  this  title  the 
term  "alcohol"  means  that  substance  known  as  ethyl  alcohol, 
hydrated  oxide  of  ethyl,  or  spirit  of  wine,  from  whatever 
source  or  whatever  processes  produced.  The  term  "container" 
includes  any  receptable,  vessel,  or  form  of  package,  tank,  or 
conduit  used  or  capable  of  use  for  holding,  storing,  trans- 
ferring, or  shipment  of  alcohol. 

When  to  Apply  for  Permit: — Sec.  2.  Any  person  now  pro- 
ducing alcohol  shall,  within  thirty  days  after  the  passage  of 
this  Act,  make  application  to  the  commissioner  for  registra- 
tion of  his  industrial  alcohol  plant,  and  as  soon  thereafter  as 


THE  ACT  199 

practicable  the  premises  shall  be  bonded  and  permit  may 
issue  for  the  operation  of  such  plant,  and  any  person  here- 
after estal)lishiug'  a  plant  for  the  production  of  alcohol  sliall 
likewise  before  operation  make  application,  file  bond,  and  re- 
ceive permit. 

How  Warehouses  may  be  Established  for  Storage  of  Al- 
cohol:— Sec.  3.  Warehouses  for  the  storage  and  distribution 
of  alcohol  to  be  used  exclusively  for  other  than  beverage 
purposes  may  be  established  upon  filing  of  application  and 
bond,  and  issuance  of  permit  at  such  places,  either  in  connec- 
tion with  the  manufacturing  plant  or  elsewhere,  as  the  com- 
missioner may  determine ;  and  the  entry  and  storage  of  alcohol 
therein,  and  the  withdrawal  of  alcohol  therefrom  shall  be  made 
in  such  containers  and  by  such  means  as  the  commissionr  by 
regulation  may  prescribe. 

Regulations  for  Transferring  Alcohol: — Sec.  4.  Alcohol 
produced  at  any  registered  industrial  alcohol  plant  or  stored 
in  any  bonded  warehouse  may  be  transferred  under  regula- 
tions to  any  other  registered  industrial  alcohol  plant  or  bond- 
ed warehouse  for  any  lawful  purpose. 

Tax  as  Lien  upon  Alcohol : — Sec.  5.  Any  tax  imposed  by 
law  upon  alcohol  shall  attach  to  such  alcohol  as  soon  as  it  is  in 
existence  as  such,  and  all  proprietors  of  industrial  alcohol 
plants  and  bonded  warehouses  shall  be  jointly  and  severally 
liable  for  any  and  all  taxes  on  any  and  all  alcohol  produced 
thereat  or  stored  therein.  Such  taxes  shall  be  a  first  lien  on 
such  alcohol  and  the  premises  and  plant  in  which  such  alcohol 
is  produced  or  stored,  together  with  all  improvements  and  ap- 
purtenances thereunto  belonging  or  in  any  wise  appertaining. 

Provisions  for  Disposition  of  Distilled  Liquors  in  Bonded 
Warehouse  at  Time  of  Enactment: — Sec.  6.  Any  distilled 
spirits  produced  and  fit  for  Ix'vei-age  puri)Oses  remaining  in 
any  bonded  warcJiouse  on  or  Ijei'ore  the  date  when  tiie 
eighteenth  amendment  of  the  constitution  of  the  United  States 
goes  into  effect  may,  under  regulations,  be  withdrawn  there- 
from either  for  denatui-ation  at  any  bonded  denatui-ing  plant 
or  for  deposit  in  a  bonded  waiehouse  establisiied  under  this 
act;  and  when  so  withdrawn,  if  not  suitable  as  to  proof,  purity, 
or   qualit}''    for    other    tliaii    hcvci-agc    purposes,    siieii    di.stilled 


200  THE  ACT 

spirits  shall  be  redistilled,  purified,  and  changed  in  proof  so 
as  to  render  such  spirits  suitable  for  other  purposes,  and 
having  been  so  treated  may  thereafter  be  denatured  or  sold 
in  accordance  with  the  provisions  of  this  act. 

Permit  to  Operate  Existing  Distillery: — Sec.  7.  Any  dis- 
tillery or  bonded  warehouse  heretofore  legally  established  may, 
upon  filing  application  and  bond  and  the  granting  of  permit,  be 
operated  as  an  industrial  alcohol  plant  or  bonded  warehouse 
under  the  provisions  of  this  title  and  regulations  made  there 
under. 

Alcohol  May  Be  Manufactured: — Sec.  8.  Alcohol  may  be 
produced  at  any  industrial  alcohol  plant  established  under  the 
provisions  of  this  title,  from  any  raw  materials  or  by  any 
processes  suitable  for  the  production  of  alcohol,  and,  under 
regulations,  may  be  used  at  any  industrial  alcohol  plant  or 
bonded  warehouse  or  sold  or  disposed  of  for  any  lawful  pur- 
pose, as  in  this  act  provided. 

Exempt  from  Certain  Laws: — Sec.  9.  Industrial  alcohol 
plants  and  bonded  warehouses  established  under  the  provisions 
of  this  title  shall  be  exempt  from  the  provisions  of  sections 
3154,  3244,  3258,  3259,  3260,  3263,  3264,  3266,  3267,  3268,  3269, 
3271,  3273,  3274,  3275,  3279,  3280,  3283,  3284,  3285,  3286,  3287, 
3288,  3289,  3290,  3291,  3292,  3293,  3294,  3295,  3302,  3303,  3307, 
3308,  3309,  3310,  3311,  3312,  3313,  3314,  and  3327  of  the  Revised 
Statutes,  sections  48  to  60,  inclusive,  and  sections  62  and  67 
of  the  act  of  August  27,  1894  (Tw^enty-eighth  Statutes,  pages 
563  to  568)  and  from  such  other  provisions  of  existing  laws 
relating  to  distilleries  and  bonded  warehouses  as  may,  by 
regulations,  be  declared  inapplicable  to  industrial  alcohol 
plants  and  bonded  warehouses  established  under  this  act. 
Regulations  may  be  made  embodying  any  provisions  of  the 
sections  above  enumerated. 

Establishment  of  Denaturing  Plants: — Sec.  10.  Upon  the 
filing  of  application  and  bond  and  issuance  of  permit  denatur- 
ing plants  may  be  established  upon  the  premises  of  any  indus- 
trial alcohol  plant,  or  elsewhere,  and  shall  be  used  exclusively 
for  the  denaturation  of  alcohol  by  the  admixture  of  such 
denaturing  materials  as  shall  render  the  alcohol,  or  any  com- 
pound in  which  it  is  authorized  to  be  used,  unfit  for  use  as  an 
intoxicating  beverage. 


THE  ACT  201 

Alcohol  lawfully  denatured  may,  under  regulations,  be 
sold  free  of  tax  either  for  domestic  use  or  for  export. 

Nothing  in  this  act  shall  be  construed  to  require  manu- 
facturers of  distilled  vinegar  to  raise  the  proof  of  any  alcohol 
used  in  such  manufacture  or  to  denature  the  same. 

Alcohol  May  Be  Withdrawn — Tax  Free: — Sec.  11.  Alco- 
hol produced  at  any  industrial  alcohol  plant  or  stored  in  any 
bonded  warehouse  may,  under  regulations,  be  withdrawn  tax 
free  as  provided  by  existing  law  from  such  plant  or  warehouse 
for  transfer  to  any  denaturing  plant  for  denaturation,  or  may, 
under  regulations,  before  or  after  denaturation,  be  removed 
from  any  such  plant  or  warehouse  for  any  lawful  tax-free 
purpose. 

Spirits  of  less  proof  than  one  hundred  and  sixty  degrees 
may,  under  regulations,  be  deemed  to  be  alcohol  for  the  i3ur- 
pose  of  denaturation,  under  the  provisions  of  this  title. 

Alcohol  may  be  withdrawn,  under  regulations,  from  any 
industrial  plant  or  bonded  warehouse  tax  free  by  the  United 
States  or  any  governmental  agency  thereof,  or  bj^  the  several 
states  and  territories  or  any  municipal  subdivision  thereof  or 
by  the  District  of  Columbia,  or  for  the  use  of  any  scientific 
university  or  college  of  learning,  any  laboratory  for  use  exclu- 
sively in  scientific  research,  or  for  use  in  any  hospital  or 
sanitorium. 

But  any  person  permitted  to  obtain  alcohol  tax  free, 
except  the  United  States  and  the  several  states  and  territories 
and  subdivision  thereof,  and  the  District  of  Columbia,  shall 
first  apply  for  and  secure  a  permit  to  purchase  the  same  and 
give  tlie  bonds  prescribed  under  Title  II  of  this  act,  but  alcohol 
withdrawn  for  nonbeverage  purposes  for  use  of  the  United 
States  and  the  several  states,  territories  and  subdivisions 
thereof,  and  the  District  of  Columbia  may  be  purchased  and 
withdrawn  subject  only  to  sueh  regulations  as  may  be 
prescribed. 

General  Provisions,  United  States  Prohibition  Act: — 
Sec.  12.  The  iM'iialticJs  provided  in  this  title  shall  be  in  addi- 
tion to  any  penalties  provided  in  Title  II  of  this  act,  unless 
expressly  otherwise  therein  provided. 


202  THE  ACT 

Regulations,  Etc.,  to  Be  Prescribed: — Sec.  13.  The  com- 
missioner shall  from  time  to  time  issue  regulations  respecting 
the  establishment,  bonding,  and  operation  of  industrial  alcohol 
plants,  denaturing  plants,  and  bonded  warehouses  authorized 
herein,  and  the  distribution,  sale,  export  and  use  of  alcohol, 
which  may  be  necessary,  advisable,  or  proper  to  secure  the 
revenue,  to  prevent  diversion  of  the  alcohol  to  illegal  uses,  and 
to  place  the  non-beverage  alcohol  industry  and  other  industries 
using  such  alcohol  as  a  chemical  raw  material  or  for  other 
lawful  purpose,  upon  the  highest  possible  plane  of  scientific 
and  commercial  efficiency  consistent  with  the  interests  of  the 
government,  and  which  shall  insure  an  ample  supply  of  such 
alcohol  and  promote  its  use  in  scientific  research  and  the 
development  of  fuels,  dyes,  and  other  lawful  products. 

Allowance  for  Evaporation: — Sec.  14.  Whenever  any 
alcohol  is  lost  by  evaporation  or  other  shrinkage,  leakage, 
casualty,  or  unavoidable  cause  during  distillation,  redistilla- 
tion, denaturation,  withdrawal,  piping,  shipment,  warehousing, 
storage,  packing,  transfer,  or  recovery,  of  any  such  alcohol 
the  commissioner  may  remit  or  refund  any  tax  incurred  under 
existing  law  upon  alcohol,  provided  he  is  satisfied  that  the 
alcohol  has  not  been  diverted  to  any  illegal  use:  Provided, 
also,  that  such  allowance  shall  not  be  granted  if  the  person 
claiming  same  is  indemnified  against  such  loss  by  a  valid  claim 
of  insurance. 

Penalties  Under  This  Title: — Sec.  15.  Whoever  operates 
an  industrial  alcohol  plant  or  a  denaturing  plant  without 
complying  with  the  provisions  of  this  title  and  lawful  regula- 
tions made  thereunder,  or  whoever  withdraws  or  attempts  to 
withdraw  or  secure  tax  free  any  alcohol  subject  to  tax,  or 
whoever  otherwise  violates  any  of  the  provisions  of  this  title 
or  of  regulations  lawfully  made  thereunder  shall  be  liable,  for 
the  first  offense,  to  a  penalty  of  not  exceeding  $1,000,  or 
imprisonment  not  exceeding  thirty  days,  or  both,  and  for  a 
second  or  cognate  offense  to  a  penalty  of  not  less  than  $100 
nor  more  than  $10,000,  and  to  imprisonment  of  not  less  than 
thirty  days  nor  more  than  one  year.  It  shall  be  laAvful  for  the 
commissioner  in  all  cases  of  second  or  cognate  offense  to 
refuse  to   issue   for  a  period  of  one  year  a  permit  for  the 


THE  ACT  203 

manufacture  or  use  of  alcohol  upon  the  premises  of  any  person 
responsible  in  any  degree  for  the  violation. 

Collection  of  Tax  to  Be  by  Assessment  or  by  Stamp: — 
Sec.  16.  Any  tax  payable  upon  alcohol  under  existinp;  hiAv 
may  be  collected  either  by  assessment  or  by  stamp  as  regula- 
tions shall  provide ;  and  if  by  stamp,  regulations  shall  issue 
prescribing  the  kind  of  stamp  to  be  used  and  the  manner  of 
affixing  and  canceling  the  same. 

Release  of  Property  Seized  for  Violation: — Sec.  17.  When 
any  property  is  seized  for  violation  of  this  title  it  may  be 
released  to  the  claimant  or  to  any  intervening  party,  in  the 
discretion  of  the  commissioner,  on  a  bond  given  and  approved. 

All  Administrative  Provisions  of  Revenue  Laws  Appli- 
cable:— Sec.  18.  All  administrative  provisions  of  internal 
revenue  law,  including  those  relating  to  assessment,  collection, 
abatement,  and  refund  of  taxes  and  penalties,  and  the  seizure 
and  forfeiture  of  property,  are  made  applicable  to  this  title 
in  so  far  as  they  are  not  inconsistent  with  the  provisions 
thereof. 

Repeal  of  Inconsistent  Laws : — Sec.  19.  All  prior  statutes 
relating  to  alcohol  as  defined  in  this  title  are  herebj^  repealed 
in  so  far  as  they  are  inconsistent  with  the  provisions  of 
this  title. 

As  Affecting  Canal  Zone: — Sec.  20.  It  shall  be  unlawful 
to  import  or  introduce  into  the  Canal  Zone,  or  to  manufacture, 
sell,  give  away,  dispose  of,  transport,  or  have  in  one's  posses- 
sion or  under  one's  control  within  the  Canal  Zone,  any 
alcoholic,  fermented,  brewed,  distilled,  vinous,  malt  or  spiritu- 
ous li(juors,  except  for  sacramental,  scientific,  i)harniaceutical, 
industrial,  or  medicinal  purposes,  undei-  i-egulatioiis  to  be  made 
by  the  President,  and  any  such  li(jiioi"s  witliin  the  Canal  Zone 
in  violation  hereof  shall  be  forfeited  to  Die  United  States  and 
seized:  Provided,  that  this  section  shall  not  apply  to  li(|U()r  in 
transit  through  the  Paiiiima  Canal  oi-  on  the  Panama  Kailroad. 

Eacli  and  every  violation  oj"  any  of  the  in-ovisions  ol"  this 
section  shall  he  punislicd  by  a  fine  ol"  not  more  than  .$1, ()()()  or 
imprisonment  not  exceeding  six  months  foi-  a  fii'st  ol'fciisc,  and 


204  THE  ACT 

by  a  fine  not  less  than  $200  nor  more  than  $2,000  and  imprison- 
ment not  less  than  one  month  nor  more  than  five  years  for  a 
second  or  subsequent  offense. 

All  offenses  heretofore  committed  within  the  Canal  Zone 
may  be  prosecuted  and  all  penalties  therefor  enforced  in  the 
same  manner  and  to  the  same  extent  as  if  this  act  had  not  been 
passed. 

When  Act  Becomes  Effective :— Sec.  21.  Titles  I  and  III 
and  sections  1,  27,  37  and  38  of  Title  II  of  this  act  shall  take 
effect  and  be  in  force  from  and  after  the  passage  and  approval 
of  the  act.  The  other  sections  of  Title  II  shall  take  effect  and 
be  in  force  from  and  after  the  date  when  the  eighteenth  amend- 
ment of  the  constitution  of  the  United  States  goes  into  effect. 

AN  ACT  SUPPLEMENTAL  TO  THE  NATIONAL  PROHIBI- 
TION ACT. 

Terms  Defined :— Sec.  1.  That  the  words  ' '  person, "  ' '  com- 
missioner", "application,"  "permit,"  "regulation,"  and  "liq- 
uor," and  the  phrase  "intoxicating  liquor,"  when  used  in  this 
Act,  shall  have  the  same  meaning  as  they  have  in  Title  II  of 
the  National  Prohibition  Act. 

Limitation  fixed  on  prescriptions :— Sec.  2.  That  only 
spiritous  and  vinous  liquor  may  be  prescribed  for  medicinal 
purposes,  and  all  permits  to  prescribe  and  prescriptions  for 
any  other  liquor  shall  be  void.  No  physician  shall  prescribe, 
nor  shall  any  person  sell  or  furnish  on  any  prescription,  any 
vinous  liquor  that  contains  more  than  24  per  centum  of  al- 
cohol by  volume,  nor  shall  anyone  prescribe  or  sell  or  furnish 
on  any  prescription  more  than  one-fourth  of  one  gallon  of  vin- 
ous liquor,  or  any  such  vinous  or  spirituous  liquor  that  contains 
separately  or  in  the  aggregate  more  than  one-half  pint  of 
alcohol,  for  use  by  any  person  within  any  period  of  ten  days. 
No  physician  shall  be  furnished  with  more  than  one  hundred 
prescription  blanks  for  use  in  any  period  of  ninety  days,  nor 
shall  any  physician  issue  more  than  that  number  of  prescrip- 
tions within  any  such  period  unless  on  application  therefor 
he  shall  make  it  clearly  apparent  to  the  commissioner  that  for 
some  extraordinary  reason  a  larger  amount  is  necessary,  where- 
upon the  necessary  additional  blanks  may  be  furnished  him. 


THE  ACT  205 

But  this  provision  shall  not  be  construed  to  limit  the  sale  of 
any  article  the  manufacture  of  which  is  authorized  under 
section  4,  Title  II,  of  the  National  Prohibition  Act. 

If  the  commissioner  shall  find  after  hearing,  upon  notice 
as  required  in  section  5  of  Title  II  of  the  National  Prohibition 
Act,  that  any  article  enumerated  in  subdivisions  b,  c,  d,  or  e 
of  section  4  of  Title  II  of  said  National  Prohibition  Act  is  being 
used  as  a  beverage,  or  for  intoxicating  beverage  purposes,  he 
may  require  a  change  of  formula  of  such  article  and  in  the 
event  that  such  change  is  not  made  within  a  time  to  be  named 
by  the  commissioner  he  may  cancel  the  permit  for  the  manu- 
facture of  such  article  unless  it  is  made  clearly  to  appear  to 
the  commissioner  that  such  use  can  only  occur  in  rare  or 
exceptional  instances,  but  such  action  of  the  commissioner  may 
by  appropriate  proceedings  in  a  court  of  equity  be  reviewed, 
as  provided  for  in  section  5,  Title  II,  of  said  National  Prohibi- 
tion Act:  Provided,  that  no  change  of  formula  shall  be 
required  and  no  permit  to  manufacture  any  article  under 
subdivision  (E),  section  4,  Title  II,  of  the  National  Prohibition 
Act  shall  be  revoked  unless  the  sale  or  use  of  such  article  is 
substantially  increased  in  the  community  by  reason  of  its  use 
as  a  beverage  or  for  intoxicating  beverage  purposes. 

No  spirituous  liquor  shall  be  imported  into  the  United 
States,  nor  shall  any  permit  be  granted  authorizing  the  manu- 
facture of  any  spirituous  liquor,  save  alcohol,  until  the  amount 
of  such  liquor  now  in  distilleries  or  other  bonded  warehouses 
shall  have  been  reduced  to  a  quantity  that  in  the  opinion  of 
the  commissioner  will,  with  liquor  that  may  thereafter  be 
manufactured  and  imported,  be  sufficient  to  supply  the  current 
need  thereafter  for  all  nonbeverage  uses:  Provided,  that  no 
vinous  liquor  shall  be  imported  into  the  United  States  unless 
it  is  made  to  appear  to  the  commissioner  that  vinous  licjuor  for 
such  nonbeverage  use  produced  in  the  United  States  is  not 
sufficient  to  meet  such  nonbeverage  needs:  Provided,  further, 
that  this  provision  against  importation  shall  not  apply  to  ship- 
ments en  route  to  the  United  States  at  the  time  of  the  passage 
of  this  act :  And  provided,  further,  that  the  commissioner  may 
authorize  the  return  to  the  United  States  under  such  regula- 
tions and  conditions  as  he  may  prescribe  any  distilled  .spirits 
of  American  production  cx])orted  free  of  tax  and  reinq)()rted 


206  THE  ACT 

in  original  packages  in  which  exported  and  consigned  for 
redeposit  in  the  distillery  bonded  warehouse  from  which  orig- 
inally removed. 

Territory  Covered  by  Act: — Sec.  3.  That  this  act  and  the 
National  Prohibition  Act  shall  apply  not  only  to  the  United 
States  but  to  all  territory  subject  to  its  jurisdiction,  including 
the  territory  of  Hawaii  and  the  Virgin  islands ;  and  jurisdiction 
is  conferred  on  the  courts  of  the  territory  of  Hawaii  and  the 
Virgin  islands  to  enforce  this  act  and  the  National  Prohibition 
Act  in  such  territory  and  islands. 

Regulations  Made  by  Commissioner: — Sec.  4.  That  regu- 
lations may  be  made  by  the  commissioner  to  carry  into  effect 
the  provisions  of  this  act.  Any  person  who  violates  any  of  the 
provisions  of  this  act  shall  be  subject  to  the  penalties  provided 
for  in  the  National  Prohibition  Act. 

Laws  in  Existence  at  Time  of  Enactment  Not  Affected  if 
Not  in  Conflict : — Sec.  5.  That  all  laws  in  regard  to  the  manu- 
facture and  taxation  of  and  traffic  in  intoxicating  liquor,  and 
all  penalties  for  violations  of  such  laws  that  were  in  force  when 
the  National  Prohibition  Act  was  enacted,  shall  be  and  con- 
tinue in  force,  as  to  both  beverage  and  nonbeverage  liquor, 
except  such  provisions  of  such  laws  as  are  directly  in  conflict 
with  any  provisions  of  the  National  Prohibition  Act  or  of  this 
act ;  but  if  any  act  is  a  violation  of  any  of  such  laws  and  also 
of  the  National  Prohibition  Act  or  of  this  act,  a  conviction  for 
such  act  or  offense  under  one  shall  be  a  bar  to  prosecution 
therefor  under  the  other.  All  taxes  and  tax  penalties  provided 
for  in  section  35  of  Title  II  of  the  National  Prohibition  Act 
shall  be  assessed  and  collected  in  the  same  manner  and  by  the 
same  procedure  as  other  taxes  on  the  manufacture  of  or  traffic 
in  liquor. 

If  distilled  spirits  upon  which  the  'internal  revenue  tax 
has  not  been  paid  are  lost  by  theft,  accidental  fire,  or  other 
casualty  while  in  possession  of  a  common  carrier  subject  to 
the  Transportation  Act  of  1920  or  the  Merchant  Marine  Act, 
1920,  or  if  lost  by  theft  from  a  distillery  or  other  bonded  ware- 
house, and  it  shall  be  made  to  appear  to  the  commissioner  that 
such  losses  did  not  occur  as  the  result  of  negligence,  conniv- 
ance, collusion,  or  fraud  on  the  part  of  the  owner  or  person 


CONSTITUTION  207 

legally  aecouutable  for  such  distilled  spirits,  no  tax  shall  bo 
assessed  or  collected  upon  the  distilled  spirits  so  lost,  nor  shall 
any  tax  penalty  be  imposed  or  collected  by  reason  of  such 
loss,  but  the  exemption  from  the  tax  and  penalty  shall  only  be 
allowed  to  the  extent  that  the  claimant  is  not  indemnified 
against  or  recompensed  for  such  loss.  This  provision  shall 
apply  to  any  claim  for  taxes  or  tax  penalties  that  may  have 
accrued  since  the  passage  of  the  National  Prohibition  Act  or 
that  may  accrue  hereafter.  Nothing  in  this  section  shall  be 
construed  as  in  any  manner  limiting  or  restricting  the  provi- 
sions of  Title  III  of  the  National  Prohibition  Act. 

Penalty  for  Search  of  Private  Dwelling :— Sec.  6.     That 

any  officer,  agent,  or  employee  of  the  United  States  engaged 
in  the  enforcement  of  this  act,  or  the  National  Prohibition  Act, 
or  any  other  law  of  the  United  States,  who  shall  search  any 
private  dwelling  as  defhied  in  the  National  Prohibition  Act, 
and  occupied  as  such  dwelling,  without  a  warrant  directing 
such  search,  or  who  while  so  engaged  shall  without  a  search 
warrant  maliciously  and  without  reasonable  cause  search  any 
other  building  or  property,  shall  be  guilty  of  a  misdemeanor 
and  upon  conviction  thereof  shall  be  fined  for  a  first  otfense 
not  more  than  $1,000,  and  for  a  subsequent  offense  not  more 
than  $1,000  or  imprisoned  not  more  than  one  year,  or  both 
such  fine  and  imprisonment. 

Whoever  not  being  an  officer,  agent,  or  employee  of  the 
United  States  shall  falsely  represent  himself  to  be  such  officer, 
agent,  or  employee  and  in  such  assumed  character  shall  arrest 
or  detain  any  person,  or  shall  in  any  manner  search  the  person, 
buildings,  or  other  property  of  any  person,  shall  be  deemed 
guilty  of  a  misdemeanor  and  upon  conviction  thereof  shall  be 
punished  by  a  fine  of  not  more  than  $1,000,  or  imprisoned  for 
not  more  than  one  year,  or  by  both  such  fine  and  imprisonment. 
(Act  of  Nov.  23,  1921.) 


208  CONSTITUTION 

CONSTITUTION  OF  THE  UNITED  STATES. 

PREAMBLE.  We,  the  people  of  the  United  States,  in 
order  to  form  a  more  perfect  union,  establish  justice,  insure 
domestic  tranquility,  provide  for  the  common  defense,  promote 
the  general  welfare,  and  secure  the  blessings  of  liberty  to 
ourselves  and  our  posterity,  do  ordain  and  establish  this  con- 
stitution for  the  United  States  of  America. 

ARTICLE  I. 

1,  All  legislative  powers  herein  granted  shall  be  vested  in 
a  congress  of  the  United  Sattes,  which  shall  consist  of  a  senate 
and  house  of  representatives. 

2.  The  house  of  representatives  shall  be  composed  of 
members  chosen  every  second  year,  by  the  people  of  the  sev- 
eral states ;  and  the  electors  in  each  state  shall  have  the 
qualifications  requisite  for  electors  of  the  most  numerous 
branch  of  the  state  legislature. 

No  person  shall  be  a  representative  who  shall  not  have 
attained  to  the  age  of  25  years,  and  been  seven  years  a  citizen 
of  the  United  States,  and  who  shall  not,  when  elected,  be  an 
inhabitant  of  that  state  in  which  he  shall  be  chosen. 

Represen'tatives  and  direct  taxes  shall  be  apportioned 
among  the  several  states  which  may  be  included  within  this 
union,  according  to  their  respective  numbers,  which  shall 
be  determined  by  adding  to  the  whole  number  of  free  persons, 
including  those  bound  to  service  for  a  term  of  years,  and  ex- 
eluding  Indians  not  taxed,  three-fifths  of  all  other  persons. 
The  actual  enumeration  shall  be  made  within  three  years 
after  the  first  meeting  of  the  congress  of  the  United  States, 
and  witliin  every  subsequent  term  of  ten  years,  in  such 
manner  as  they  shall  by  law  direct.  The  number  of  repre- 
sentatives shall  not  exceed  one  for  every  30,000,  but  each 
state  shall  have  at  least  one  representative;  and  until  such 
enumeration  shall  be  made,  the  state  of  New  Hampshire  shall 
be  entitled  to  choose  three ;  Massachusetts,  eight,  Rhode  Island 
and  Providence  Plantations,  one ;  Connecticut,  five ;  New  York, 
six ;  New  Jersey,  four ;  Pennsylvania,  eight,  Delaware,   one ; 


CONSTITUTION  209 

Marj'land,  six,  Virginia,  ten ;  North  Carolina,  five ;  South  Caro- 
line, five ;  and  Georgia,  three.  (Amended,  see  fourteenth  and 
sixteenth  amendments). 

When  vacancies  happen  in  the  representation  from  any- 
state,  the  executive  authority  thereof  shall  issue  writs  of  elec- 
tion to  fill  such  vacancies. 

The  house  of  representatives  shall  choose  their  speaker 
and  other  officers,  and  shall  have  the  sole  power  of  impeach- 
ment. 

3.  The  senate  of  the  United  States  shall  be  composed 
of  two  senators  from  each  state,  chosen  by  the  legislature 
thereof,  for  six  years;  and  each  senator  shall  have  one  vote. 
(Superseded  by  the  seventeenth  amendment.) 

Immediately  after  they  shall  be  assembled  in  consequence 
of  the  first  election,  they  shall  be  divided,  as  equally  as  may 
be,  into  three  classes.  The  seats  of  the  senators  of  the  first 
class  shall  be  vacated  at  the  expiration  of  the  second  year; 
of  the  second  class,  at  the  expiration  of  the  fourth  year ;  and 
of  the  third  class,  at  the  expiration  of  the  sixth  year,  so  that 
one-third  may  be  chosen  every  second  year;  (and  if  vacan- 
cies happen  by  resignation  or  otherwise,  during  the  recess 
of  the  legislature  of  any  state,  the  executive  thereof  may  make 
temporary  appointments  until  the  next  meeting  of  the  legis- 
lature, which  shall  then  fill  such  vacancies.)  Clause  enclosed 
in  brackets  was  superceded  by  the  seventeenth  amendment.) 

No  person  shall  be  a  senator  who  shall  not  have  attained 
to  the  age  of  30  years,  and  been  nine  years  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  in- 
habitant of  that  state  for  which  he  shall  be  chosen. 

The  vice-president  of  the  United  States  shall  be  president 
of  the  senate;  but  shall  have  no  vote,  unless  they  be  equally 
divided. 

The  senate  shall  choose  their  other  officers,  and  also  a 
president  pro  tempore  in  the  absence  of  the  vice-president, 
or  when  he  shall  exercise  the  office  of  president  of  the  United 
States. 

The  senate  shall  have  the  sole  power  to  try  all  impeach- 
ments. When  sitting  for  that  purpose,  they  shall  be  on  oath 
or  affirmation.  When  the  president  of  the  United  States  is 
tried,  the  chief  justice  sliall   preside:  ;nid   no  person  shall  be 


210  CONSTITUTION 

convicted  without  the  concurrence  of  two-thirds  of  the  mem- 
bers present. 

Judgment,  in  cases  of  impeachment,  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to 
hold  and  enjoy  any  office  of  honor,  trust  or  profit  under  the 
United  States ;  but  the  party  convicted  shall,  nevertheless,  be 
liable  and  subject  to  indictment,  trial,  judgment  and  punish- 
ment, according  to  law. 

4.  The  times,  places  and  manner  of  holding  election  for 
senators  and  representatives  shall  be  prescribed  in  each  state 
by  the  legislature  thereof;  but  the  congress  may,  at  any 
time,  by  law,  make  or  alter  such  regulations,  except  as  to 
the  places  of  choosing  senators. 

The  congress  shall  assemble  at  least  once  in  every  year, 
and  such  meeting  shall  be  on  the  first  Monday  in  December, 
unless  they  shall,  by  law,  appoint  a  different  day. 

5.  Each  house  shall  be  the  judge  of  the  elections,  returns 
and  qualifications  of  its  own  members;  and  a  majority  of 
each  shall  constitute  a  quorum  to  do  business;  but  a  smaller 
number  may  adjourn  from  day  to  day,  and  may  be  authorized 
to  compel  the  attendance  of  absent  members,  in  such  manner 
and  under  such  penalties  as  each  house  may  provide. 

Each  house  may  determine  the  rules  of  its  proceedings, 
punish  its  members  for  disorderly  behavior,  and,  with  the 
concurrence  of  two-thirds,  expel  a  member. 

Each  house  shall  keep  a  journal  of  its  proceedings,  and 
from  time  to  time  publish  the  same,  excepting  such  parts  as 
may,  in  their  judgment,  require  secrecy;  and  the  yeas  and 
nays  of  the  members  of  either  house,  on  any  question,  shall, 
at  the  desire  of  one-fifth  of  those  present,  be  entered  on  the 
journal. 

Neither  house,  during  the  session  of  congress,  shall  with- 
out the  consent  of  the  other  ,adjoum  for  more  than  three 
days,  nor  to  any  other  place  than  that  in  which  the  two  houses 
shall  be  sitting. 

6.  The  senators  and  representatives  shall  receive  a  com- 
pensation for  their  services,  to  be  ascertained  by  law,  and  paid 
out  of  the  treasury  of  the  United  States.  They  shall,  in  all 
cases,  except  treason,  felony  and  breach  of  the  peace,  be 
privileged  from  arrest  during  their  attendance  at  the  session 
of  their  respective  houses,  and  in  going  to  or  returning  from 


CONSTITUTION  211 

the  same ;  and  for  any  speech  or  debate  in  either  house  they 
shall  not  be  questioned  in  any  other  place. 

No  senator  or  representative  shall  ,  during  the  time  for 
which  he  was  elected,  be  appointed  to  any  civil  office  under 
the  authority  of  the  United  States  which  shall  have  been  creat- 
ed, or  the  emoluments  whereof  shall  have  been  increased, 
during  such  time ;  and  no  person  holding  any  office  under  the 
United  States  shall  be  a  member  of  either  house  during  his 
continuance  in  office. 

7.  All  bills  for  raising  a  revenue  shall  originate  in  the 
house  of  representatives;  but  the  senate  may  propose  or  con- 
cur with  amendments,  as  on  other  bills. 

Every  bill,  which  shall  have  passed  the  house  of  repre- 
sentatives and  the  senate,  shall,  before  it  becomes  a  law,  be 
presented  to  the  president  of  the  United  States ;  if  he  approve, 
he  shall  sign  it ;  but  if  not,  he  shall  return  it,  with  his  objec- 
tions, to  that  house  in  which  it  shall  have  originated,  who 
shall  enter  the  objections  at  large  on  their  journal,  and  pro- 
ceed to  reconsider  it.  If,  after  such  consideration,  two-thirds 
of  that  house  shall  agree  to  pass  the  bill,  it  shall  be  sent,  to- 
gether with  the  objections,  to  the  other  house,  by  which  it 
shall  likewise  be  reconsidered,  and  if  approved  by  two-thirds 
of  that  house,  it  shall  become  a  law.  But  in  all  such  cases 
the  votes  of  both  houses  shall  be  determined  by  yeas  and  nays ; 
and  the  names  of  the  persons  voting  for  and  against  the  bill, 
shall  be  entered  on  the  journal  of  each  house  respectively. 
If  any  bill  shall  not  be  returned  by  the  president  within  10, 
days  (Sunday  excepted)  after  it  shall  have  been  presented  to 
him,  the  same  shall  be  a  law,  in  like  manner  as  if  he  had  signed 
it,  unless  the  congress,  by  their  adjournment,  prevents  its  re- 
turn; in  which  case,  it  shall  not  be  a  law. 

Every  order,  resolution  or  vote,  to  which  the  concurrence 
of  the  Senate  and  House  of  Representatives  may  be  necessary 
(except  on  the  question  of  adjournment),  shall  be  presented 
to  the  President  of  the  United  States ;  and  before  the  same  shall 
take  effect,  shall  be  approved  by  him,  or  being  disapproved  by 
him,  shall  be  repassed  by  two-thirds  of  the  Senate  and  House 
of  Representatives,  according  to  the  rules  and  limitations  pre- 
scribed in  the  case  of  a  bill. 

8.     The  congress  shall  have  power — 


212  CONSTITUTION 

To  lay  and  collect  taxes,  duties,  imposts  and  excises,  to 
pay  the  debts,  and  provide  for  the  common  defense  and  general 
welfare  of  the  United  States,  but  all  duties,  imposts  and  ex- 
cises shall  be  uniform  throughout  the  United  States. 

To  borrow  money  on  the  credit  of  the  United  States; 

To  regulate  commerce  with  foreign  nations,  and  among 
the  several  states,  and  with  the  Indian  tribes ; 

To  establish  an  uniform  rule  of  naturalization,  and  uni- 
form laws  on  the  subject  of  bankruptcy  throughout  the  United 
States ; 

To  coin  money,  regulate  the  value  thereof,  and  of  foreign 
coin,  and  fix  the  standard  of  weights  and  measures ; 

To  provide  for  the  punishment  of  counterfeiting  the  se- 
curities and  current  coin  of  the  United  States. 

To  establish  post  offices  and  post  roads ; 

To  promote  the  progress  of  science  and  useful  arts,  by 
securing  for  limited  times,  to  authors  and  inventors,  the  ex- 
clusive right  to  their  respective  writings  and  discoveries ; 

To  constitute  tribunals  inferior  to  the  supreme  court ; 

To  define  and  punish  piracies  and  felonies  committed  on 
the  high  seas,  and  offenses  against  the  law  of  nations; 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water; 

To  raise  and  support  armies ;  but  no  appropriation  of 
money  to  that  use  shall  be  for  a  longer  term  than  two  years ; 

To  provide  and  maintain  a  navy ; 

To  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces ; 

To  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections,  and  repel  invasions; 

To  provide  for  organizing,  arming  and  discipling  the 
militia  and  for  governing  such  part  of  them  as  may  be  em- 
ployed in  the  service  of  the  United  States,  reserving  to  the 
states  respectively  the  appointment  of  the  officers,  and  the 
authority  of  training  the  militia  according  to  the  discipline 
prescribed  by  congress. 

To  exercise  exclusive  legislation  in  all  cases  whatsoever 
over  such  district  (not  exceeding  ten  miles  square)  as  may,  by 
cession  of  particular  states,  and  the  acceptance  of  congress, 
become  the  seat  of  government  of  the  United  States,  and  to 


CONSTITUTION  213 

exercise  like  authority  over  all  places  purchased  by  the  con- 
sent of  the  legislature  of  the  state  in  which  the  same  shall  be, 
for  the  erection  of  forts,  magazines,  arsenals,  dock  yards,  and 
other  needful  buildings ;  and 

To  make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof. 

9.  The  migration  or  importation  of  such  persons  as  any 
of  the  states  now  existing  shall  think  proper  to  admit,  shall 
not  be  prohibited  by  the  congress  prior  to  the  year  one  thou- 
sand eight  hundred  and  eight,  but  a  tax  or  duty  may  be  im- 
posed on  such  importation,  not  exceeding  ten  dollars  for  each 
person. 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be 
suspended  unless  when,  in  cases  of  rebellion  or  invasion,  the 
public  safety  may  require  it. 

No  bill  of  attainer  or  ex  post  facto  law  shall  be  passed. 

No  capitation  or  other  direct  tax  shall  be  laid,  unless  in 
proportion  to  the  census  or  enumeration  hereinbefore  directed 
to  be  taken. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
state.  No  preference  shall  be  given,  by  any  regulation  of  com- 
merce or  revenue,  to  the  ports  of  one  state  over  those  of  an- 
other; nor  shall  vessels  bound  to  or  from  one  state  be  obliged 
to  enter,  clear  or  pay  duties  in  another. 

No  money  shall  be  drawn  from  the  treasury,  but  in  con- 
sequence of  appropriations  made  by  law;  and  a  regular  state- 
ment and  account  of  the  receipts  and  expenditures  of  all  public 
money  shall  be  publislied  from  time  to  time. 

No  title  of  nobility  shall  be  granted  by  the  United  States, 
and  no  person  holding  any  office  of  profit  or  trust  under  them 
shall,  without  the  consent  of  the  congress,  accept  of  any  pres- 
ent, emolument,  office  or  title  of  any  kind  wliatever,  from  any 
king,  prince  or  foreign  state. 

10.  No  state  siiall  enter  into  any  treaty,  alliance  or  con- 
federation;  grant  letters  of  marque  and  reprisal;  coin  money; 
emit  bills  of  credit;  make  anything  but  gold  and  silver  coin  a 
tender  in  payment  of  debts;  i)ass  any  bill  of  attainder,  ex  post 
facto  law,  or  law  impairing  the  obligation  of  contracts;  or 
grant  any  title  of  nobility. 


214  CONSTITUTION 

No  state  shall,  without  the  consent  of  the  congress,  lay- 
any  imposts  or  duties  on  imports  or  exports,  except  what  may 
be  absolutely  necessary  for  executing  its  inspection  laws ;  and 
the  net  produce  of  all  duties  and  imposts  laid  by  any  state  on 
imports  or  exports,  shall  be  for  the  use  of  the  treasury  of  the 
United  States,  and  all  such  laws  shall  be  subject  to  the  revision 
and  control  of  the  congress.  No  state  shall,  without  the  conserit 
of  congress,  lay  any  duty  of  tonnage,  keep  troops  or  ships  of  war 
in  time  of  peace,  enter  into  any  agreement  or  compact  with 
another  state,  or  with  a  foreign  power,  or  engage  in  war,  unless 
actually  invaded,  or  in  such  imminent  danger  as  will  not  admit 
of  delay. 

ARTICLE  n. 

1.  The  executive  power  shall  be  vested  in  a  President  of 
the  United  State  of  America.  He  shall  hold  his  office  during 
the  term  of  four  years,  and  together  with  the  Vice  President, 
chosen  for  the  same  term,  be  elected  as  follows : 

Each  state  shall  appoint,  in  such  manner  as  the  legisla- 
ture thereof  may  direct,  a  number  of  electors,  equal  to  the 
whole  number  of  senators  and  representatives  to  which  the 
state  may  be  entitled  in  the  congress;  but  no  senator  or  repre- 
sentative, or  person  holding  an  office  of  trust  or  profit  under 
the  United  States,  shall  be  appointed  an  elector. 

The  electors  shall  meet  in  their  respective  states  and  vote 
by  ballot  for  two  persons,  of  whom  one  at  least  shall  not  be 
an  inhabitant  of  the  same  state  with  themselves.  And  they 
shall  make  a  list  of  all  the  persons  voted  for,  and  of  the  number 
of  votes  for  each;  which  list  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  seat  of  government  of  the  United  States, 
directed  to  the  president  of  the  Senate.  The  president  of  the 
Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Repre- 
sentatives, open  all  the  certificates,  and  the  votes  shall  then  be 
counted.  The  person  having  the  greatest  number  of  votes 
shall  be  the  President,  if  such  number  be  a  majority  of  the 
whole  number  of  electors  appointed ;  and  if  there  be  more  than 
one  who  have  such  majority,  and  have  an  equal  number  of 
votes,  then  the  House  of  Representatives  shall  immediately 
choose,  by  ballot,  one  of  them  for  President ;  and  if  no  person 
have  a  majority,  then  from  the  five  highest  on  the  list  the  said 


CONSTITUTION  215 

House  shall,  in  like  manner,  choose  the  President.  But  in 
choosing  the  President,  the  votes  shall  be  taken  by  states,  the 
representation  from  each  state  having  one  vote ;  a  quorum  for 
this  purpose  shall  consist  of  a  member  or  members  from  two- 
thirds  of  the  states,  and  a  majority  of  all  the  states  shall  be 
necessary  to  a  choice.  In  every  case  after  the  choice  of  the 
President,  the  person  having  the  greatest  number  of  votes  of 
the  electors  shall  be  the  Vice  President.  But  if  there  should 
remain  two  or  more  who  have  equal  votes,  the  Senate  shall 
choose  from  them,  by  ballot,  the  Vice  President.  (The 
foregoing  paragraph  was  superseded  by  the  twelfth  amend- 
ment.) 

The  congress  may  determine  the  time  of  choosing  the  elec- 
tors, and  the  day  on  which  they  shall  give  their  votes ;  which 
day  shall  be  the  same  throughout  the  United  States. 

No  person  except  a  natural  born  citizen  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  constitution, 
shall  be  eligible  to  the  ofdce  of  President;  neither  shall  any 
person  be  eligible  to  that  office  who  shall  not  have  attained  to 
the  age  of  35  years,  and  been  14  years  a  resident  within  the 
United  States. 

In  case  of  the  removal  of  the  President  from  office,  or  of 
his  death,  resignation,  or  inability  to  discharge  the  powers 
and  duties  of  the  said  office,  the  same  shall  devolve  on  the 
Vice  President,  and  the  congress  may,  by  law,  provide  for  the 
case  of  removal,  death,  resignation  or  inability,  both  of  the 
President  and  Vice  President,  declaring  what  officer  shall  then 
act  as  President,  and  such  officer  shall  act  accordingly,  until 
the  disability  be  removed,  or  a  President  shall  be  elected. 

The  President  shall,  at  stated  times,  receive  for  his  ser- 
vices a  compensation,  which  shall  neither  be  increased  or 
diminished  during  tlie  period  for  which  he  shall  have  been 
elected,  and  he  shall  not  receive  within  that  period  any  other 
emolument  from  the  United  States  or  any  of  them. 

Before  he  enters  on  the  execution  of  his  office  he  shall  take 
the  following  oath  or  affirmation : 

"I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully 
execute  the  office  of  President  of  the  United  States,  and  will, 
to  the  best  of  my  ability,  preserve,  protect  and  defend  the  con- 
stitution of  the  United  States." 


216  CONSTITUTION 

2.  The  President  shall  be  commander-in-chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  militia  of  the  several 
states,  when  called  into  the  actual  service  of  the  United  States, 
he  may  require  the  opinion,  in  writing,  of  the  principal  oflficer 
in  each  of  the  executive  departments,  upon  any  subject  relat- 
ing to  the  duties  of  their  respective  offices ;  and  he  shall  have 
power  to  grant  reprieves  and  pardons,  for  offenses  against  the 
United  States  except  in  cases  of  impeachment. 

He  shall  have  power,  by  and  with  the  advice  and  consent 
of  the  Senate,  to  make  treaties,  provided  two-thirds  of  the 
senators  present  concur;  and  he  shall  nominate,  and,  by  and 
with  the  advice  and  consent  of  the  senate,  shall  appoint  ambas- 
sadors, other  public  ministers  and  consuls,  judges  of  the  su- 
preme court,  and  all  other  officers  of  the  United  States,  whose 
appointments  are  not  herein  otherwise  provided  for,  and  which 
shall  be  established  by  law.  But  the  congress  may,  by  law, 
vest  the  appointment  of  such  inferior  officers,  as  they  shall 
think  proper,  in  the  President  alone,  in  the  courts  of  law,  or  in 
the  heads  of  departments. 

The  President  shall  have  power  to  fill  up  all  vacancies 
that  may  happen  during  the  recess  of  the  Senate,  by  granting 
commissions,  which  shall  expire  at  the  end  of  their  next  session. 

3.  He  shall,  from  time  to  time,  give  to  the  congress  in- 
formation of  the  state  of  the  Union ;  and  recommend  to  their 
consideration  such  measures  as  he  shall  judge  necessary  and 
expedient.  He  may,  on  extraordinary  occasions,  convene  both 
houses,  or  either  of  them,  and  in  case  of  disagreement  between 
them,  with  respect  to  the  time  of  adjournment,  he  may  ad- 
journ them  to  such  time  as  he  shall  think  proper.  He  shall  re- 
ceive ambassadors  and  other  public  ministers.  He  shall  take 
care  that  the  laws  be  faithfully  executed;  and  shall  commis- 
sion all  officers  of  the  United  States. 

4.  The  President,  Vice-President,  and  all  civil  officers  of 
the  United  States,  shall  be  removed  from  office,  on  impeach- 
ment for  and  conviction  of  treason,  bribery,  or  other  high 
crimes  and  misdemeanors. 


CONSTITUTION  217 

ARTICLE  in. 

1.  The  judicial  power  of  the  United  States  shall  be  vested 
in  one  supreme  court,  and  in  such  inferior  courts  as  the  con- 
gress may,  from  time  to  time,  ordain  and  establish.  The  judges, 
both  of  the  supreme  and  inferior  courts,  shall  hold  their 
offices  during  good  behavior;  and  shall,  at  stated  times,  receive 
for  their  services  a  compensation,  which  shall  not  be  diminished 
during  their  continuance  in  office. 

2.  The  judicial  power  shall  extend  to  all  cases,  in  law  and 
equity,  arising  under  this  constitution,  the  laws  of  the  United 
State's,'  and  treaties  made,  or  which  shall  be  made,  under  their 
authority;  to  all  cases,  affecting  ambassadors,  other  public 
ministers  and  consuls ;  to  all  cases  of  admiralty  and  maritime 
jurisdiction ;  to  controversies  to  Avhich  the  United  States  shall 
be  a  party;  to  controversies  between  two  or  more  states;  be- 
tween a  state  and  citizens  of  another  state ;  between  citizens 
of  different  states;  between  citizens  of  the  same  state,  claiming 
lands  under  grants  of  different  states ;  and  between  a  state  or 
the  citizens  thereof,  and  foreign  states,  citizens  or  subjects. 

In  all  cases,  affecting  ambassadors,  other  public  ministers, 
and  consuls,  and  those  in  which  a  state  shall  be  a  party,  the 
supreme  court  shall  have  original  jurisdiction.  In  all  the  other 
cases  before  mentioned,  the  supremo  court  shall  have  appellate 
jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions  and 
under  such  regulations  as  the  congress  shall  make. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment, 
shall  be  by  jury ;  and  such  trials  shall  be  held  in  the  state  where 
the  said  crimes  shall  have  been  committed ;  but  when  not  com- 
mitted within  any  state,  the  trial  shall  be  at  such  place  or 
places  as  the  congress  may  by  law  have  directed. 

3.  Treason  against  the  United  States  shall  consist  only  in 
levying  war  against  them,  or  in  adliering  to  their  enemies, 
giving  them  aid  and  comfort.  No  person  shall  be  convicted  of 
treason  unless  on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  on  confession  in  open  court. 

The  congress  shall  have  power  to  dechire  the  punishment 
of  treason ;  but  no  attainder  of  treason  shall  work  corruption 
of  blood,  or  forfeiture  except  during  llic  life  of  the  person 
attainted. 


218  CONSTITUTION 

ARTICLE  IV. 

1.  Full  faith  and  credit  shall  be  given,  in  each  state,  to 
the  public  acts,  records  and  judicial  proceedings  of  every 
other  state.  And  the  congress  may,  by  general  laws,  prescribe 
the  manner  in  which  such  acts,  records  and  proceedings  shall 
be  proved,  and  the  effect  thereof. 

2.  The  citizens  of  each  state  shall  be  entitled  to  all  priv- 
ileges and  immunities  of  citizens  in  the  several  states. 

A  person  charged  in  any  state  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice,  and  be  found  in 
another  state,  shall,  on  demand  of  the  executive  authority  of 
the  state  from  which  he  fled,  be  delivered  up,  to  be  removed  to 
the  state  having  jurisdiction  of  the  crime. 

No  person  held  to  service  or  labor  in  one  state  under  the 
laws  thereof,  escaping  into  another,  shall,  in  consequence  of 
any  law  or  regulation  therein,  be  discharged  from  such  service 
or  labor;  but  shall  be  delivered  up  on  claim  of  the  party  to 
whom  such  service  or  labor  may  be  due. 

3.  New  states  may  be  admitted  by  the  congress  of  this 
Union ;  but  no  new  state  shall  be  formed  or  erected  within  the 
jurisdiction  of  any  other  state,  nor  any  state  be  formed  by  the 
injunction  of  two  or  more  states,  or  parts  of  states,  without  the 
consent  of  the  legislatures  of  the  states  concerned,  as  well  as 
of  the  congress. 

The  congress  shall  have  power  to  dispose  of,  and  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other 
property,  belonging  to  the  United  States;  and  nothing  in  this 
constitution  shall  be  so  construed  as  to  prejudice  any  claims 
of  the  United  States,  or  of  any  particular  state. 

4.  The  United  States  shall  guarantee  to  every  state  in 
this  Union  a  republican  form  of  government,  and  shall  protect 
each  of  them  against  invasion ;  and  on  application  of  the  legis- 
lature, or  of  the  executive  (when  the  legislature  cannot  be  con- 
vened) against,  domestic  violence. 

ARTICLE  V. 

The  congress,  whenever  two-thirds  of  both  houses  shall 
deem  it  necessary,  shall  propose  amendments  to  this  constitu- 
tion ;  or,  on  the  application  of  the  legislatures  of  two-thirds  of 
the  several  states,  shall  call  a  convention  for  proposing  amend- 


CONSTITUTION  219 

ments,  which,  in  either  case,  shall  be  valid  to  all  intents  and 
purposes,  as  part  of  this  constituttion,  when  ratified  by  the 
legislatures  of  three-fourths  of  the  several  states,  or  by  conven- 
tions in  three-fourths  thereof,  as  the  one  or  the  other  mode  of 
ratification  may  be  proposed  by  the  congress  :Provided,  that  no 
amendment  which  may  be  made  prior  to  the  year  one  thousand 
eight  hundred  and  eight,  shall  in  any  manner  affect  the  first 
and  fourth  clauses  in  the  ninth  section  of  the  first  article ;  and 
that  no  state,  without  its  consent,  shall  be  deprived  of  its  equal 
suffrage  in  the  senate. 

ARTICLE  VI. 

1.  All  debts  contracted,  and  engagements  entered  into, 
before  the  adoption  of  this  constitution,  shall  be  as  valid 
against  the  United  States,  under  this  constitution,  as  under  the 
confederation. 

This  constitution  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made,  or 
which  shall  be  made  under  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land ;  and  the  judges  in  every 
state  shall  be  bound  thereby;  anything  in  the  constitution  or 
laws  of  any  state  to  the  contrary  notwithstanding. 

The  senators  and  representatives  before  mentioned,  and 
the  members  of  the  several  state  legislatures,  and  all  executive 
and  judicial  officers,  both  of  the  United  States  and  of  the 
several  states,  shall  be  bound,  by  oath  or  affirmation,  to  support 
this  constitution;  but  no  religious  test  shall  ever  be  required 
as  a  qualification  to  any  office  or  public  trust  under  the  United 
States. 

ARTICLE  Vn. 

The  ratification  of  the  conventions  of  nine  states  shall  be 
sufficient  for  the  establishment  of  this  constitution  between  the 
states  so  ratifying  the  same. 

Done  in  convention,  by  the  unanimous  consent  of  the 
states  present,  the  seventeenth  day  of  September,  in  the  year  of 
our  Lord  one  thousand  seven  hundred  and  eighty-seven,  and 
of  the  independence  of  the  United  States  of  America  the 
twelfth. 


220  CONSTITUTION 

ARTICLES  IN  ADDITION  TO,  AND  AMENDMENT  OF, 
THE  CONSTITUTION  OF  THE  UNITED  STATES  OP 
AMERICA  PROPOSED  BY  CONGRESS,  AND  RATI- 
FIED BY  THE  LEGISLATURE  OF  THE  SEVERAL 
STATES  PURSUANT  TO  THE  FIFTH  ARTICLE  OP 
THE   ORIGINAL  CONSTITUTION. 

ARTICLE   I. 

Congress  shall  make  no  law  respecting  an  establishment 
of  religion,  or  prohibiting  the  free  exercise  thereof ;  or  abridg- 
ing the  freedom  of  speech,  or  of  the  press ;  or  the  rights  of  the 
people  peaceably  to  assemble,  and  to  petition  the  government 
for  a  redress  of  grievances. 

ARTICLE  II. 

A  well  regulated  militia  being  necessary  to  the  security 
of  a  free  state,  the  right  of  the  people  to  keep  and  bear  arms 
shall  not  be  infringed. 

ARTICLE  III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner;  nor  in  time  of  war, 
but  in  a  manner  to  be  prescribed  by  law. 

ARTICLE  IV. 

The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers  and  effects,  against  unreasonable  searches  and 
seizures,  shall  not  be  violated;  and  no  warrants  shall  issue,  but 
upon  probable  cause,  supported  by  oath  or  affirmation,  and 
particularly  describing  the  place  to  be  searched,  and  the 
persons  or  things  to  be  seized. 

ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital,  or  other- 
wise infamous  crime,  unless  on  a  presentment  or  indictment 
of  a  grand  jury,  except  in  cases  arising  in  the  land  or  naval 
forces,  or  in  the  militia,  when  in  actual  service,  in  time  of  war 
or  public  danger ;  nor  shall  any  person  be  subject  for  the  same 


CONSTITUTION  221 

offense  to  be  twice  put  in  jeopardy  of  life  or  limb ;  nor  shall 
be  compelled,  in  any  criminal  case,  to  be  a  witness  against 
himself,  nor  be  deprived  of  life,  liberty  or  property,  without 
due  process  of  law ;  nor  shall  private  property  be  taken  for 
public  use  without  just  compensation. 

ARTICLE  VI. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the 
state  and  district  wherein  the  crime  shall  have  been  com- 
mitted, which  district  shall  have  been  previously  ascertained 
by  law,  and  to  be  informed  of  the  nature  and  cause  of  the 
accusation;  to  be  confronted  with  the  witnesses  against  him; 
to  have  compulsory  process  for  obtaining  witnesses  in  his 
favor,  and  to  have  the  assistance  of  counsel  for  his  defense. 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  $20,  the  right  of  trial  by  jury  shall  be  preserved; 
and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in 
any  court  of  the  United  States,  than  according  to  the  rules 
of  the  common  law. 

ARTICLE  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

ARTICLE  IX. 

The  enumeration,  in  the  constitution,  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  others  retained 
by  the  people. 

ARTICLE  X. 

The  powers  not  delegated  to  the  United  States  by  the 
constitution,  nor  prohibited  by  it  to  the  states,  are  reserved  to 
the  states  respectively,  or  to  the  people. 


222  CONSTITUTION 

ARTICLE  XI. 

The  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity,  commenced  or 
prosecuted  against  one  of  the  United  States  by  citizens  of 
another  state,  or  by  citizens  or  subjects  of  any  foreign  state. 

ARTICLE  Xn. 

1.  The  electors  shall  meet  in  their  respective  states,  and 
vote  by  ballot  for  President  and  Vice-President,  one  of  whom 
at  least  shall  not  be  an  inhabitant  of  the  same  state  with  them- 
selves; they  shall  name  in  their  ballots  the  person  voted  for 
as  President,  and  in  distinct  ballots  the  person  voted  for  as 
Vice-President ;  and  they  shall  make  distinct  lists  of  all  persons 
voted  for  as  President,  and  of  all  persons  voted  for  as  Vice- 
President,  and  of  the  number  of  votes  for  each,  which  list 
they  shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of 
government  of  the  United  States,  directed  to  the  president  of 
the  Senate;  the  president  of  the  Senate  shall,  in  the  presence 
of  the  Senate  and  House  of  Representatives,  open  all  the  cer- 
tificates, and  the  votes  shall  then  be  counted;  the  person 
having  the  greatest  number  of  votes  for  President  shall  be  the 
President,  if  such  number  be  a  majority  of  the  whole  number 
of  electors  appointed;  and  if  no  person  have  such  majority, 
then  from  the  persons  having  the  highest  numbers,  not  exceed- 
ing three,  on  the  list  of  those  voted  for  as  President,  the  House 
of  Representatives  shall  choose  immediately,  by  ballot,  the 
President.  But  in  choosing  the  President,  the  votes  shall  be 
taken  by  states,  the  representation  from  each  state  having  one 
vote ;  a  quorum  for  this  purpose  shall  consist  of  a  member  or 
members  from  two-thirds  of  the  states,  and  a  majority  of  all 
the  states  shall  be  necessary  to  a  choice.  And  if  the  House  of 
Representatives  shall  not  choose  a  President  whenever  the 
right  of  choice  shall  devolve  upon  them,  before  the  fourth  day 
of  March  next  following,  then  the  Vice-President  shall  act  as 
President,  as  in  the  case  of  the  death  or  other  constitutional 
disability  of  the  President. 

2.  The  person  having  the  greatest  number  of  votes  as 
Vice-President,  shall  be  the  Vice-President,  if  such  number  be 
a  majority  of  the  whole  number  of  electors  appointed;  and  if 
no  person  have  a  majority,  then  from  the  two  highest  numbers 


CONSTITUTION  223 

on  the  list  the  Senate  shall  choose  a  Vice-President.  A  quorum 
for  the  purpose  shall  consist  of  two-thirds  of  the  whole  number 
of  senators,  and  a  majority  of  the  whole  number  shall  be  nec- 
essary to  a  choice. 

3.  But  no  person  constitutionally  ineligible  to  the  office 
of  President  shall  be  eligible  to  that  of  Vice-President  of  the 
United  States. 

ARTICLE  Xni. 

1.  Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime,  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any  place 
subject  to  their  jurisdiction. 

2.  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 

ARTICLE  XIV. 

1.  All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  state  wherein  they  reside.  No  state 
shall  make  or  enforce  any  laAV  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United  States,  nor  shall 
any  state  deprive  any  person  of  life,  liberty  or  property,  with- 
out due  process  of  law,  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws. 

2.  Representatives  shall  be  apportioned  among  the  sev- 
eral states,  according  to  their  respective  numbers,  counting 
the  whole  number  of  persons  in  each  state,  excluding  Indians 
not  taxed.  But  when  the  right  to  vote  at  any  election  for  the 
choice  of  electors  for  President  and  Vice-President  of  the 
United  States,  representatives  in  congress,  the  executive  and 
judicial  officers  of  a  state,  or  the  members  of  the  legislature 
thereof,  is  denied  to  any  of  the  male  inhabitants  of  such  state 
being  21  years  of  age,  and  citizens  of  the  United  States  or  in 
any  way  abridged,  except  for  participation  in  rebellion  or  other 
crime,  the  basis  of  representation  therein  shall  be  reduced  in 
the  proportion  which  the  number  of  such  male  citizens  shall 
bear  to  the  whole  number  of  male  citizens  21  years  of  age  in 
such  state. 


224  CONSTITUTION 

3.  No  person  shall  be  a  senator  or  representative  in  con- 
gress, or  elector  of  President  and  Vice-President,  or  hold  any 
office,  civil  or  military,  under  the  United  States,  or  under  any 
state,  who,  having  previously  taken  an  oath  as  a  member  of 
congress,  or  as  an  officer  of  the  United  States,  or  as  a  member 
of  any  state  legislature,  or  as  an  executive  or  judicial  officer 
of  any  state,  to  support  the  constitution  of  the  United  States, 
shall  have  engaged  in  insurrection  or  rebellion  against  the 
same,  or  given  aid  or  comfort  to  the  enemies  thereof.  But 
congress  may,  by  a  vote  of  two-thirds  of  each  house,  remove 
such  disability. 

4.  The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment  of 
pensions  and  bounties  for  services  in  suppressing  insurrection 
or  rebellion,  shall  not  be  questioned.  But  neither  the  United 
States  nor  any  state  shall  assume  or  pay  any  debt  or  obliga- 
tion incurred  in  aid  of  insurrection  or  rebellion  against  the 
United  States,  or  any  claim  for  the  loss  or  emancipation  of  any 
slave ;  but  all  such  debts,  obligations  and  claims  shall  be  held 
illegal  and  void. 

5.  The  congress  shall  have  power  to  enforce,  by  appro- 
priate legislation,  the  provisions  of  this  article. 

ARTICLE  XV. 

1.  The  right  of  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  abridged  by  the  United  States  or  any  state 
on  account  of  race,  color  or  previous  condition  of  servitude. 

2.  The  congress  shall  have  powder  to  enforce  this  article 
by  appropriate  legislation. 

ARTICLE  XVI. 

The  congress  shall  have  power  to  lay  and  collect  taxes 
on  incomes,  from  whatever  source  derived,  without  apportion- 
ment among  the  several  states,  and  without  regard  to  any 
census  or  enumeration. 

ARTICLE  XVII. 

The  Senate  of  the  United  States  shall  be  composed  of  two 
senators  from  each  state,  elected  by  the  people  thereof,  for  six 
years;  and  each  senator  shall  have  one  vote.     The  electors  in 


CONSTITUTION  225 

each  state  shall  have  the  qualifications  requisite  for  electors 
of  the  most  numerous  branch  of  the  state  legislatures. 

When  vacancies  happen  in  the  representation  of  any  state 
in  the  senate,  the  executive  authority  of  such  state  shall  issue 
wi'ites  of  election  to  fill  such  vacancies:  Provided,  that  the 
legislature  of  any  state  may  empower  the  executive  thereof  to 
make  temporary  appointments  until  the  people  fill  the  vacan- 
cies by  election  as  the  legislature  may  direct. 

This  amendment  shall  not  be  so  construed  as  to  affect  the 
election  or  term  of  any  senator  chosen  before  it  became  valid 
as  part  of  the  constitution. 

ARTICLE  XVni. 

1.  After  one  year  from  the  ratification  of  this  article  the 
manufacture,  sale,  or  transportation  of  intoxicating  liquors 
within,  the  importation  thereof  into,  or  the  exportation  thereof 
from  the  United  States  and  all  territory  subject  to  the  juris- 
diction thereof  for  beverage  purposes  is  hereby  prohibited. 

2.  The  congress  and  the  several  states  shall  have  concur- 
rent power  to  enforce  this  article  by  appropriate  legislation. 

3.  This  article  shall  be  inoperative  unless  it  shall  have 
been  ratified  as  an  amendment  to  the  constitution  by  the  legis- 
latures of  the  several  states,  as  provided  in  the  constitution, 
within  seven  years  from  the  date  of  the  submission  hereof  to 
the  states  by  the  congress. 

ARTICLE  XIX. 

The  right  of  citizens  of  the  United  States  to  vote  shall  not 
be  denied  or  abridged  by  the  United  States  or  by  any  state  on 
account  of  sex. 

Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 


226  GENERAL  INDEX 


GENERAL  INDEX. 

Page  Paragraph 

ACCOMPLICE 7 

Considered  as  principal 8  9 

Act  extends  to  territorial  limits 24  103 

of  one  act  of  both  in  conspiracy 22  96 

is  not   constitutional   because   it   takes 

away  right  of  trial  by  jury 30  123 

Admissibility  of  official  records 17  69 

of  books  not  effected  by  fictitious  entries  17  67 

of  account  books 17  67 

of  items  of  account  books 17  68 

of  technical  books 17  70 

ADMISSIONS   8 

as  sufficient  proof 8  10 

against  interest   9  13 

by  attorneys 9  11 

by  silence   9  15 

distinguished  from  confessions 9  14 

made  to  magistrate 9  16 

of  owning  liquor  admissible 35  146 

while  under  arrest 9  12 

Affidavit  supporting  information  sworn  to 

before  notary  public 43  192 

insufficient,  does  not  require  dismissal 

of  bill 72  324 

After  arrest   11  25 

Alaska  law  not  repealed 83  380 

Alcoholic  content  may  be  testified  to  basing 

testimony  on  opinion 73  331 

Amendment   to    Constitution  need   not    de- 
clare necessity  28  114 

to  bill  charging  nuisance 68  312 

Animosity  may  be  shown 41  180 

Appeal  to  prejudice 9  17 

Appearance  of  witness  may  be  commented 

on  by  attorney 10         ,      18 


GENERAL  INDEX  227 

Page  Paragraph 

ARGUMENT    9 

may  be  limited  by  court 10  22 

of  counsel  which  is  misleading  may  be 

referred  to  by  the  court 58  263 

may  be  of  wide  scope 11  24 

ARREST  11 

as  cause  for  denial  of  bail 13  38 

by  state  authorities  not  interfered  with 

by  federal  authorities 12  31 

cannot  be  ordered  by  district  attorney 

on  verbal  direction 40  176 

may  be  made  by  surety 13  42 

of  United  States  officer 11  26 

without  a  warrant 72  326 

Arrest  as  effecting  admissions 9  12 

Attempt  to  conceal  crime  as  warranting  im- 
mediate arrest   11  28 

Attorneys'   statements  not  binding   on  de- 
fendant    9  11 

Automobile  as  common  carrier 115  509 

may  be  searched  without  warrant 108  470 

mortgaged  as  affecting  seizure 92  414 

not  forfeited  until  after  conviction.  ...  38  160 
owner  having  knowledge  as  to  use  of 

car  in  violation 96  424 

seized  without  process 90  405 

sold  only  after  conviction 90  404 

used  without  owner's  knowledge 91  406 

will  not  be  forefited  for  transportation 

unless  records  show  violation  of  act.  .  38  160 
will  not  be  forfeited  for  transportation 
shown  liquors  were  sold,  kept,  manu- 
factured, or  bartered  in  said  vehicle.  38  161 

BAIL    12 

after  conviction 12  34 

as  a  right 13  40 

defined  13  35 

excessive    12  36 

mu.st  be  signed 13  41 

not  denied  because  of  previous  arrest. .  13  38 

taken  by  clerk 13  43 


228  GENERAL  INDEX 

Page  Paragraph 

BAR  TO  CONVICTION  14 

in  case  of  conspiracy  14  44 

to  conviction  not  warranted  by  facts ...  44  202 

Beer  and  Wine  defined 32  132 

Beer  may  be  prohibited  by  Congress 80  363 

Bill  charging  nuisance  must  be  specific 68  313 

must  follow  statute 69  317 

BILL  OF  EXCEPTIONS 15 

held   sufficient    16  61 

may  be  settled  after  filing  writ  and  as- 
signment of  errors   16  60 

must  be  filed  in  term 15  51 

must  be  complete  to  cover  objections..  15  56 

must  contain  court's  rulings 18  76 

necessary  in  court  of  appeals 15  55 

as  statutory  right  16  59 

Bill  for  abatement  must  set  out  facts 68  314 

BILL  OF  PARTICULARS 16 

does  not  cure  faulty  averment 16  64 

within  discretion  of  court 44  199 

Boat  defined  94  418 

BOOKS    17 

each  account  item  need  not  be  identified  17  68 

and  papers  may  be  seized 103  444 

Bond  for  return  of  property  not  cancelled 

until  trial   37  158 

Burden  on  defendant  to  show  legal  posses- 
sion    78  345 

is  on  government  to  show  tax  unpaid.  .  114  501 

CHARACTER 17 

not  to  be  commented  on  by  court 19  78 

CHARGE  OF  THE  COURT 18 

expressing   opinion   as  to   guilt   of   de- 
fendant      19  81 

must  be  contained  in  bill  of  exceptions.  15  56 

must  be  objected  to  at  time  of  trial. ...  20  82 

not  to  be  comment  on  evidence 18  77 

Chattel  mortgage  on  car  seized 92  114 

Circuit  Court  has  power  to   issue  Writ  of 

Habeas  Corpus 39  170 

Circumstantial  evidence  showing  possession  76  346 


GENERAL  INDEX  229 

Page  Paragraph 

City  powers  same  as  delegated  to  the  state .  21  90 

ordinance  not  in  conflict 20  85 

Clerk  may  take  bail 13  43 

Collection  of  penalties  may  be  enjoined. ...  73  332 

Comment  on  appearance 10  18 

on  failure  of  accused  to  testify 10  19 

Collateral   inquiry   will  not  be   made   into 
mode    of    objectionable    evidence    when 

question  is  raised  for  first  time  at  trial. .  104  451 
Commissioner  has  not  power  to  order  return 

of  liquor   89  399 

may  institute  information 45  205 

of  internal  revenue  referred  to  in  Sec- 
tion 5-9,  Title  II 78  343 

Commissioner's  findings  may  be  reviewed  by 

Habeas  Corpus 40  173 

Competency   or   incompetency   of   evidence 

seized   92  416 

Concealing  crime  as  justifying  arrest  with- 
out warrant   11  28 

knowledge  of  crime  does  not  make  ac- 
complice    7  1 

Concurrent  power  under  Constitution 25  104 

Confession  sufficient  to  convict  if  corrobo- 
rated     110  483 

as  distinguished  from  admission 9  14 

CONFISCATION    20 

not  intended  by  Volstead  Act 79  361 

not  made  of  property  legally  owned.  ...  20  84 

of  whiskey   94  417 

of  property  under  Act 29  121 

tax    112  489 

will  not  be  implied 20  83 

Conflict  between  Federal  and  State  Courts.  21  92 

between  Federal  and  City  laws 21  90 

between  Federal  and  State  laws 21  88 

does  not  exist  because  of  previous  en- 
actment      22  94 

CONFLICT  OF  LAWS  20 

of  penalties 21  87 


230  GENERAL  INDEX 

Page  Paragraph 
Congress  has  power  to  amend  Constitution.  29  120 
has  power  to  carry  into  effect  constitu- 
tional provisions   79  362 

has  power  to  prohibit  use  of  beer 80  363 

may  prohibit  distribution  of  liquor  man- 
ufactured before  act 29  118 

may  prohibit  unreasonable  searches ...  80  364 

and  state  do  not  divide  powers 28  115 

Congressional  act  need  not  be  indicated  by 

by  title    31  128 

CONSTITUTIONAL    24 

Amendment  18  not  in  conflict  with  five .  26  107 
Amendment  18  operative  throughout  ter- 
ritorial limits  24  103 

amendment  need  not  express  necessity.  28  114 

amendment  not  invalid  because  it  limits  27  112 

forbids  transportation  31  130 

limitations    27  112 

right  against  jeopardy  not  violated  by 

act 27  110 

not  violated  by  Reed  Amendment 30  122 

not  violated  because  one  act  created  two 

offenses    28  116 

not  violated  because  it  takes  away  po- 
lice powers   28  117 

right  must  be  violated  to  secure  release 

from  state  authorities   40  174 

does  not  require  act  to  be  indicated  by 

title    31  128 

rule  of  construction  30  127 

denial  of  right  of  trial  by  jury  does  not 

affect  act 30  123 

constitutionality  of  act   25  105 

CONSPIRACY    22 

act  of  one  is  act  of  both 22  96 

defined    23  97 

indictment  held  good 23  98 

indictment  held  insufficient 23  99 

Court  may  impound  books 17  66 

may  be  mandamused  to  sign  bill  of  ex- 
ceptions     15  54 


GENERAL  INDEX  231 

Page  Paragraph 

must  not  assume  fact 19  79 

expressing  opinion  on  evidence 19  80 

not  authorized  to   substitute   its  judg- 
ment for  that  of  the  legislature 29  119 

may  review  commissioners'  findings  in 

hearing  of  Habeas  Corpus   40  173 

may  issue  injunction  on  same  facts ....  52  235 
excluded  from  issuing  other  injunctions 

under  Section  22 53  238 

may  instruct  as  to  argument 58  263 

should  not  use  facts  in  other  cases  to 

illustrate  charge   59  269 

need  not  direct  verdict  on  one  count  if 

it  will  confuse  the  jury 65  298 

may  hear  evidence  to  determine  if  new 

trial  shall  be  granted 66  300 

should  not  have  reasonable  doubt  in  re- 
fusing new  trial 66  301 

may  set  aside  order  granting  new  trial.  67  310 

may  amend  order  for  sale  of  automobile  92  413 

Comment  on  failure  of  accused  to  testify.  .  10  19 

Conviction  as  affecting  bail 12  34 

Computation  of  time  as  affecting  bill  of 

exceptions 15  51 

Craft  defined   94  418 

Continuous  possession  need  not  be  alleged 

in  bill  charging  nuisance 68  315 

Conviction  in  state  court  not  enough  to  war- 
rant forfeiture 37  159 

Conviction  must  be  had  before  forfeiture..  38  163 

DEPARTMENT  HEADS   33 

may  promulgate  regulations 33  140 

Different  penalties  do  not  constitute  conflict  21  87 

Distance  defined   32  133 

District  court  does  not  have  appellate  powers  39  168 
Attorney  cannot  order  arrest  by  verbal 

direction    40  176 

Attorney  cannot  be  enjoined  54  243 

Directing  verdict  of  acquittal  refused 65  297 


232  GENERAL  INDEX 

Page  Paragraph 
Direction  of  verdict  based  on  opening  state- 
ment      65  295 

refused  and  its  effect 65  297 

on  one  count 65  297 

is  error  if  it  amounts  to  instruction  to 

find  defendant  guilty 65  299 

Director  may  not  revoke  permits 75  340 

Doctrine  of  doubtful  words  definied 32  134 

Double   jeopardy  provision   of   constitution 

not  violated  by  act 27  110 

Due  process  of  law  defined 39  167 

Due  process  of  law  under  constitution 26  106 

Date  in  indictment  does  not  limit  prosecution  43  197 

DEFINITIONS    32 

Accomplice    7  2 

Bail 13  35 

conspiracy    23  97 

intoxicating  liquor   26  109 

33  136 

33  137 

beer  and  wine 32  132 

of  word  "legislature" 27  111 

bard  cider 32  135 

property    33  138 

sweet  cider  33  139 

due  process  of  law 39  167 

liquor  54  242 

reasonable  doubt 58  265 

jury  62  294 

nuisance   68  316 

"Boat,"  "Craft,"  etc 94  418 

tax 112  490 

114  503 

Defense  entrapment  held  insufficient 34  141 

Defendant  entitled  to  bill  of  particulars ....  16  63 

not  entitled  to  bill  of  particulars 16  65 

need  not  be  shown  as  proprietor  to  se- 
cure conviction  of  maintaining  a  nui- 
sance    47  213 

does  not  lose  control  over  property  be- 
cause of  Section  22 53  240 


GENERAL  INDEX  233 

Page  Paragraph 

must  obey  restraining  order 53  241 

entitled  to  prompt  trial 98  431 

guilt  assumed  because  of  falsification.     120  535 

Description  insufficient  in  search  warrant .  .  .   105  455 

Death  of  defendant  abates  proceedings 53  239 

Eighteenth  amendment  not  in  conflict  with 

fifth    26  107 

ENTRAPMENT    34 

by  officers  does  not  make  accomplice ...  3  7 

held  insufficient  as  defense 34  141 

as  a  defense  34  142 

against  public  policj''  34  143 

by  sale  of  whiskey  35  144 

permissible    35  145 

Enforcement  of  penalties  as  a  tax 74  333 

Endorsement  no  part  of  indictment 44  198 

of  witness  on  indictment 44  199 

Equal  protection  of  law  under  constitution .  26  108 

Equity  powers  not  created  by  Volstead  Act  58  261 

will  not  aid  return  of  liquor 88  394 

EVIDENCE  ADMISSIBLE  35 

Evidence  misquoted   10  23 

deemed  sufficient  on  failure  to  file  bill 

of  exceptions   16  57 

gains  nothing  by  recital  in  bill  of  ex- 
ceptions     16  58 

of  good  character  admissible 17  71 

not  to  be  commented  on  by  court 19  80 

admissible  although  at  variance 35  147 

as  to  admission  of  ownership  35  146 

of  sale  admitted  though  not  made  by  de- 
fendant    35  148 

of  finding  liquor  on  person  admissible 

without  warrant   35  150 

as  to  packages  resembling  those  contain- 
ing whiskey   36  152 

showing  telegrams  sent  but  not  received 

held  admissible    36  153 

and  competent  which  showed  whiskey 

found  in  shop  of  defendant's  brother  36  154 


234  GENERAL  INDEX 

Page  Paragraph 
and  competent  as  to  whiskey  tags  not 

identified  36  155 

evidence     does    not    require     a    large 

amount  of  whiskey 38  164 

must   be   competent   to   defeat   Habeas 

Corpu's    38  166 

warranting  inference  of  intent 60  272 

showing  intent 60  275 

warranting  direction  of  verdict 64  293 

held  sufficient  to  show  nuisance 69  318 

held  sufficient  to  convict  of  maintaining 

nuisance    72  325 

held  sufficient  to  show  possession 77  348 

not  showing  possession  77  349 

77  352 

before  grand  jury  presumed  proper.  ...     80  368 

suppressed   81  372 

as  to  competency  or  incompetency  ref- 
erence may  be  made  to  master 92  416 

illegally  seized 92  416 

secured  by  illegal  search 105  453 

held  admissible  showing  transportation  116  511 
held  sufficient  to  convict  of  transporta- 

tation  119  523 

Essentials  to  good  indictment 44  200 

EXCEPTIONS  AND  OBJECTIONS 37 

Exceptions  need  not  be  alleged  in  indictment     44  201 

should  be  specific   37  156 

should  be  taken  at  once 37  157 

as  matter  of  defense 116  512 

Excessive  bail   13  36 

remedy  is  in  habeas  corpus 13  39 

Exhibiting  warrant  not  necessary 11  29 

Expiration  of  term  as  affecting  bill  of  ex- 
ception       15  51 

Expression  of  opinion  on  evidence  by  court     19  80 

Extension  of  time  to  file  bill  of  exceptions. ,     15  53 
Extradition  will  not   be   inquired   into   by 

habeas  corpus    40  177 


GENERAL  INDEX  235 

Page  Paragraph 
Facts  in  other  cases  should  not  be  nsed  to 

illustrate  charge  of  court 59  369 

must  not  be  assumed  by  court  unless 

admitted  by  defendant  18  75 

19  79 

Failure  of  accused  to  testify 10  19 

Federal  act  does  not  affect  state  law  if  no 

conflict 21  88 

amendment  takes  supersedence  of  state 

legislation   21  89 

enactment  not  in  conflict  with  state  if 

consistent    22  95 

judge  should  exercise  caution  in  issuing 
writ  for  release  of  prisoners  in  cus- 
tody of  state  authorities 39  172 

court  will  not  inquire  into  extradition  on 

hearing  of  writ  of  habeas  corpus.  ...     40  177 
Felony  justifying  arrest  without  warrant . .     12  33 
Fifth  amendment  of  constitution  not  in  con- 
flict with  eighteenth 26             107 

FORFEITURE 37 

of  bond  on  seized  property  not  cancelled 

until  trial   37  158 

not  warranted   by   conviction   in   state 

court   37  159 

not  sustained  by  evidence 38  160 

does  not  injure  lienors 38  162 

not  made  until  after  conviction 38  163 

should  be  brought  under  act  not  under 

custom  laws   38  165 

must  have  certain  elements  to  be  sus- 
tained   94  419 

provision  of  act  is  a  proceeding  in  rem.  95  423 

not  made  if  search  is  unlawful 96  425 

does  not  apply  to  steamships 102  429 

Fourth  Amendment    95  420 

Fugitive  receives  no  benefit  from  statute  of 

limitation    14  45 

Garage  not  subject  to  unreasonable  search.  95  421 


236  GENERAL  INDEX 

Page  Paragraph 

General  rule  on  improper  remarks 10  20 

Good  character   120  534 

of  other  witness  not   competent   when 

not  assailed 41  182 

admissible 17  71 

as  raising  reasonable  doubt  18  72 

not  presumed  18  74 

Great  amount  of  whiskey  need  not  be  held 

for  evidence   38  164 

Guilt  of  accused  commented  on 19  81 

HABEAS  CORPUS   39 

as  remedy  for  excessive  bail 13  37 

13  39 

lies  to  review  commissioner's  findings.  .  40  173 
lies  to  secure  a  discharge  from  custody 

of  state  officers 39  171 

may  be  applied  for  by  next  friend 41  178 

may  be  issued  by  circuit  judge 39  170 

petition  must  be  specific 39  169 

should  issue  to  release  prisoners  in  state 

authority  only  in  exceptional  cases .  .  39  172 

unaffected  by  voluntary  surrender  ....  40  175 
will  discharge  if  no  competent  evidence 

to  hold  on 39  166 

will  lie  to  secure  release  of  prisoners 
held  by  state  authorities  when  consti- 
tutional right  is  violated 40  174 

will  not  issue  when  arrest  was  made  on 

verbal  direction  of  district  attorney.  40  176 

will  not  serve  as  writ  of  error 41  179 

will  not  lie  to  raise  insufficiency  of  in- 
dictment    45  203 

Hard  cider  defined  32  135 

Identification  of  whiskey  tags  not  necessary  36  155 

IMPEACHMENT    41 

of  witnesses  by  collateral  attacks  im- 
proper      41  181 

facts   41  183 

by  inconsistent  statements 42  184 


GENERAL.  INDEX  237 

Page  Paragraph 

by  interest  sliowTi 42  185 

without  contradiction 42  186 

of  own  witness 42  187 

by  showing  mental  condition  of  witness     42  188 

by  previous  conviction 42  189 

of  witness  may  be  rebutted 42  190 

of  verdict  cannot  be  based  on  affidavit 

of  jurors   66  304 

INDICTMENT  AND  INFORMATION   43 

not  cured  by  bill  of  particulars 16  64 

for  conspiracy  held  good 23  98 

for  conspiracy  held  insufficient 23  99 

for  conspiracy  must  show  (object) 24  101 

not  defective  because  it  failed  to  nega- 
tive punishment  under  articles  of  war     43  193 
need   not   contain   an   averment   as   to 

statute    43  194 

charging  nuisance  sufficient  if  statute 

foUowed   43  195 

for  transportation  held  error  because  it 

ignored  element  of  guilty  knowledge .   117  515 

charging  transportation  held  good 117  516 

held  sufficient 118  517 

charging  nuisance  held  insufficient 69  319 

charging  possession  held  sufficient 77  350 

charging  sale  held  good 91  407 

not  effected  if  objection  comes  too  late.     51  230 
charging  offense  under  one  section  pun- 
ishment cannot  be  had  under  another 

section    52  231 

need  not  allege  point  from  which  trans- 
portation started 43  196 

not  limited  to  date  contained  therein ...     43  197 
not  fatally  defective  because  of  endorse- 
ment       44  198 

must  have  certain  essentials 44  200 

need  not  allege  exceptions 44  201 

cannot  be  questioned  by  habeas  corpus .     45  203 

must  set  forth  facts 46  210 


238  GENERAL  INDEX 

Page  Paragraph 

must  be  objected  to  before  verdict 46  211 

must  contain  matter  germain 46  212 

charging  possession 47  215 

counts  properly  consolidated 48  217 

properly  charging  sale 48  220 

need  not  show  actual  transportation.  .  .  49  223 

not  affected  by  invalidity  of  law 49  224 

under  law  repealed 49  224 

having  variance 50  225 

cured  by  verdict 51  226 

need  not  be  verified 51  227 

must  charge  beverage  as  intoxicating. .  51  228 

charging  separate  offenses   51  229 

Inference  of  intent  warranted 60  272 

inference  from  single  sale 91  408 

Information  supported  by  affidavit  sworn  to 

before  notary  public 43  192 

must  be  supported  by  proof  that  bever- 
age contains  more  than  I/2  of  1%  al- 
cohol     35  149 

adequate  if  it  follows  statute 69  320 

and  belief  insufficient  to  warrant  in- 
junction      70  312 

and  belief  not  basis  for  search  warrant.  105  454 
cannot  be  filed  by  special  assistant  at- 
torney general 52  232 

not  charging  beverage  as  intoxicating 

held  good   45  204 

may  be  filed  though  instituted  by  com- 
missioner    45  205 

held  sufficient    45  206 

46  208 
refused    on    information    illegally    ob- 
tained      46  207 

held  good  although  statute  misappre- 
hended    46  209 

will  lie 48  218 

may  be  filled  by  whom 48  219 


GENERAL  INDEX  239 

Page  Paragraph 
Increase  of  alcoholic  content  after  date  of 

alleged  violation   35  149 

Improper  remarks  sufficient  to   grant   new 

ti-ial  66  305 

Imprisonment  under  Section  29 74  334 

Ignorance  as  to  alcoholic  content  no  offense  91  409 
Illegall}'  obtained  information  no  basis  for 

search  warrant    95  422 

INJUNCTION    52 

not  issued  if  adequate  remedy  at  law. . .  52  234 
on  another  case  may  be  issued  on  same 

facts  52  235 

bill  must  state  claim  of  right  in  good 

faith    52  236 

violation  is  criminal  in  nature 53  237 

violation  abated  by  death  of  defendant  53  239 

must  be  obeyed  53  241 

will  not  lie  against  district  attorney ....  54  243 
will  lie  to  enjoin  enforcement  of  state 

statute   54  244 

against  nuisance    54  245 

writ  served  upon  defendant  instead  of 

injunctional  order 55  247 

dismissed  is  bill  insufficient 56  250 

need  not  allege  conviction 56  251 

purpose    57  255 

will  lie  against  public  officers 56  254 

should   not    issue    if   reasonable    doubt 

exists   57  256 

time  fixed  by  Section  22 57  258 

service  held  good   58  259 

to  prevent  nuisance 58  260 

will  lie  to  prevent  injury  from  wrong 

construction  of  statute   58  262 

will  not  be  issued  on  information  and 

belief    70  321 

INSTRUCTIONS 58 

on   argument 58  263 

on  reasonable  doubt 58  265 


240  GENERAL,  INDEX 

Page  Paragraph 

on  sale 59  266 

do  not  follow  state  practice 59  267 

giving  supplemental  charge 59  268 

using  facts  in  other  cases 59  269 

covering  sale  of  interest  in  property. ...  59  270 

may  be  written 59  271 

on  transportation 58  264 

Impounding  of  books  by  court 17  66 

INTENT 60 

alone  not  enough 60  273 

by  resumption   60  274 

shown  by  proof  of  other  facts 60  275 

may  be  rebutted 61  276 

undisclosed  as  effecting  purchase 81  374 

to  transport  not  enough 118  518 

Innocence  presumed 80  370 

Items  in  book  account  need  not  be  identified.  17  68 

Intoxicating  liquor  defined 33  137 

26  109 

33  136 

JEOPARDY  61 

by  disagreement  and  discharge  of  jury.  61  279 
does  not  arise  by  conviction  under  ordi- 
nance      61  278 

does  not  arise  if  first  court  did  not  have 

jurisdiction  61  280 

if  defendant  convicted  in  state  court  on 

same  fact 61  277 

test    61  281 

JURY 62 

as  provided  in  constitution 62  282 

challenge  62  283 

defined  62  284 

member  may  be  excused  by  court 63  289 

may  be  placed  in  charge  of  special  officer  64  292 

may  view  premises 63  285 

not  disqualified  because  of  service  with- 
in a  year 64  291 

of  twelve  not  to  be  waived 63  286 


GENERAL  INDEX  241 

Page  Paragraph 
opinion  of  juror  does  not  necessarily 

disqualify    63  287 

to  say  when  liquor  is  manufactured. . .  63  288 

trial  to  be  waived 63  290 

Kept  for  sale — means  kept  for  sale  or  other 

commercial  purposes 38  161 

Legislature  defined 27  111 

Lienors  are  protected  from  forfeiture 38  162 

rights   89  402 

Liquor  defined  54  242 

held  under  permit 75  241 

need  not  be  returned  if  illicit 88  396 

not  confiscated  if  legally  owned 20  84 

on  person  may  be  used  as  evidence 35  150 

on  person  warranting  arrest 12  30 

removed  from  private  and  bonded  ware- 
house    82  378 

removed  without  payment  of  tax 82  379 

Limitations  on  Argument 10  22 

under  judicial  code  No.  266 55  249 

Mandamus  lies  to  compel  court  to  sign  bill 

of  exceptions 15  54 

Magistrate  may  testify  to  admissions 9  16 

Mash   77  351 

Merger  of  offense  in  conspiracy 24  100 

Misconduct  of  jury  as  cause  for  new  trial.  . .  67  306 

Misdemanor  to  sell  liquor 49  221 

Misquoting  the  evidence 10  23 

Morality  irrelevant 18  73 

Mortgage  and  vender 89  401 

MOTION  TO  DIRECT  VERDICT 64 

to  dismiss  bill  must  be  taken  as  true  if 

facts  are  well  pleaded 55  246 

to  direct  verdict  warranted 64  293 

to  direct  verdict  waived 64  294 

National  Prohibition  Act  within  power  of 

Congress    29  lib 


242  GENERAL  INDEX 

Page  Paragraph 

NEW  TRIAL 66 

denied  not  subject  to  review 67  309 

on   grounds   of   newly   discovered   evi- 
dence, diligence  must  be  shown 66  302 

is  within  discretion  of  court 66  303 

will  not  be  granted  on  account  of  juror's 
disqualification  unless  challenge  has 

been  exercised  67  307 

order  may  be  set  aside 67  310 

will  not  be   granted  for  improper  re- 
marks    66  305 

will  not  be  granted  if  there  is  reasona- 
ble doubt 66  301 

will  not  be  granted  unless  diligence  is 

shown 66  302 

NUISANCE  67 

as  misdemeanor 67  311 

constituted  by  single  sale 71  323 

defined 68  316 

enjoined    54  245 

58  260 

sufficiently  established 72  325 

sufficiently  shown  69  318 

sufficiently  averred  if  statute  followed.  43  195 

Newly  discovered  evidence 67  308 

Object  of  conspiracy  24  101 

OBJECTIONS   37 

and  exceptions  must  be  specific 37  156 

must  be  taken  at  once 37  157 

to  indictment  comes  too  late  after  ver- 
dict    46  211 

to  indictment  should  be  made  at  once.  .  51  230 

to  charge  of  court  made  at  time  of  trial  20  82 

OFFICERS 72 

may  arrest  without  warrant 72  326 

restrained  by  state  authorities 72  327 

restrained  from  collecting  tax 74  337 

not  immune  from  arrest 72  328 

are  limited  to  federal  violation 72  329 


GENERAL  INDEX  243 

Page  Paragraph 
of  the  court  do  not  include  prohibition 

agents   72  330 

not   accomplices  because  they  use   en- 
trapment     7  3 

using  trap,  decoy,  etc 34  143 

Official  records  held  admissible 17  69 

One  act  may  be  violation  of  two  statutes. ...  28  116 

OPINION    73 

may  be  given  as  to  alcoholic  content. . .  73  331 

of  court  on  evidence 19  80 

of  court  as  to  guilt  of  defendant 19  81 

of  juror 63  287 

Opening  statement  may  give  ground  for  ver- 
dict    65  295 

Original  pleadings  admissible 36  151 

pleadings  held  admissible  on  contempt 

charge    56  253 

Overt  act  in  conspiracy 24  102 

Owner's   responsibility   where   property   is 

used  in  creating  nuisance 70  332 

rights  in  vehicle  loaned 90  403 

not  protected  on  forfeiture  of  vehicle  if 

he  has  knowledge  of  use 96  424 

property  rights  must  be  alleged  to  se- 
cure return  of  property 88  395 

Powers   of  state   in   creating   more   drastic 

liquor  law 21  91 

between  Congress  and  State  not  divided  28  115 

to  amend  Constitution  in  Congress 29  120 

of  the  United  State  to  restrict  use  of 

liquor  30  126 

of  state  to  prohibit  possession 79  358 

PRESUMPTION   80 

when  ordering  whiskey 80  365 

that  evidence  given  before  grand  jury 

is  proper   80  366 

is   against   party    not   calling    material 

witness    80  367 

of  knowledge  of  the  law 80  368 


244  GENERAL  INDEX 

Page  Paragraph 

of  guilt  not  created  by  indictment 80  369 

of  innocence 80  370 

upon  presumption  not  permitted 81  371 

of  intent  60  274 

is  that  ingredients  are  unknown  to 
grand  jury  when  so  alleged  in  indict- 
ment    47  216 

of  good  character 18  74 

Principal  and  Accomplice  the  same 8  9 

Proof  of  admissions  held  sufficient 8  10 

Prejudice  not  to  be  appealed  to 9  17 

Prisoner  to  go  before  magistrate  immediately  11  25 

Presence  of  officer  justifies  arrest 12  32 

Prosecution  in  state  court  as  a  bar 14  49 

under  revenue  laws  as  a  bar 14  50 

in  both  Federal  and  State  courts 21  92 

by  information 48  218 

Private  property  may  be  taken  under  act.  .  .  29  121 

Private  dwelling  may  be  searched 97  429 

Property  defined 33  138 

Premises  must  be  reviewed  by  jury 63  285 

Prohibition   agents   are  not   officers   of   the 

court    72  330 

Proceedings  to  determine  rights  of  seizure.  98  430 
Punishment   in   state    court   will   be    taken 

cognizance  of  by  Federal  court 47  214 

may  be  under  state  court 22  93 

must  be  given  under  same  section  vio- 
lated    52  231 

Package  resembling  those  containing  whis- 
key admissible  36  152 

Papers  returned  when  unlawfully  seized ....  97  428 
Parties  to  bill  to  review   acts   of  commis- 
sioner     75  342 

Payment    under    protest    voluntary,    unless 

statute  provides  otherwise 58  252 

PENALTIES    73 

collection  may  be  enjoined 73  332 

held  oppressive   ■  74  335 


GENERAL  INDEX  245 

Page  Paragraph 

will  not  be  enforced  as  a  tax 74  333 

and  tax  distinguished   75  338 

for  possession 78  353 

must  be  under  some  act  violated 118  521 

PERMITS  75 

may  not  be  revoked  by  director 75  340 

for  holding  liquor  must  follow  statute.  75  341 

need  not  be  negatived 118  520 

Person  carrying  liquor  arrested  without  war- 
rant     ■ 12  30 

POLICE  POWERS 76 

not  delegated 76  344 

under  constitution 28  117 

POSSESSION    76 

shown  by  circumstantial  evidence 76  346 

in  dwelling  house  76  347 

shown  sufficiently   77  348 

not  sufficiently  shown 77  349 

of  mash  not  sustaining  a  conviction ....  77  351 

not  shown 77  352 

distinguished    78  355 

alone  not  an  offense 78  356 

prior  to  sale  78  357 

of  liquor  in  warehouse 79  380 

as  charged  in  indictment   47  215 

POWER  OF  CONGRESS 79 

PURCHASER    81 

commits  no  offense 81  373 

as  affected  by  undisclosed  intent  as  to 

use   81  374 

of  whiskey  does  not  entrap  seller 35  144 

of  liquor  not  accomplice  of  seller 7  4 

Public  officers  may  be  enjoined 56  254 

may  be  restrained 57  257 

Purpose  of  injunction 57  255 

Reasonable  doubt  raised  by  good  cliaracter.  18  72 

as  affecting  injunction 57  256 

defined  58  265 


246  GENERAL  INDEX 

Page  Paragraph 

Reasonable  searcli  is  a  judicial  question ....  31  129 

and  unreasonable  searches  99  434 

Reed  amendment  constitutional 30  122 

REGULATIONS    81 

as  provided  for  in  act 81  375 

by  commissioner  of  internal  revenue ...  82  376 

Recognizance  need  not  be  signed 13  41 

Recital  in  bill  of  exceptions  adds  nothing  to 

evidence    16  58 

Remarks  not  sufficient  to  reverse 10  20 

improper  but  not  prejudicial 10  21 

REMOVAL  OF  LIQUOR  82 

from  bonded  and  private  warehouse. . .  82  379 

without  payment  of  tax 82  379 

REPEAL  OF  FORMER  STATUTES 83 

Statutes  general  for  rule,  See 83  381 

is  determined  by  consistency  of  incon- 
sistency      83  382 

as  a  bar 14  47 

and  suspension  of  statutes  distinguished  84  384 

and  statutes  not  repealed,  See 86  387 

of  Section  15  of  the  Lever  Act 87  388 

of  special  and  general  statutes 87  390 

by  implication  where  punishment  is  less  74  336 

RETURN  OF  PROPERTY 88 

100  435 

on  giving  bond 88  393 

liquor  not  aided  by  equity 88  394 

will  not  be  made  unless  owTiership  is 

alleged  88  395 

does  not  apply  to  illicit  liquor 88  396 

will  not  be  ordered  in  summary  pro- 
ceedings      88  397 

cannot  be  ordered  by  commisioner 89  399 

does  not  apply  to  stills 89  400 

order  not  appealable   96  427 

Rights  to  bail 13  40 

to  file  information 48  219 


GENERAL  INDEX  247 

Page  Paragraph 
of  uo  property  does  not  exist  in  contra- 
band liquor    88  398 

of  conditional  vendor  or  mortgagor  in 

forfeited  property 89  401 

of  lienor 89  402 

of  owner  having  loaned  vehicle 90  403 

Revenue  laws  not  repealed 84  385 

Revenue  law  violation  not  a  bar 14  50 

Revised  statute,  Sees.  3258,  3279,  3281 84  386 

Rule  as  to  corroboration  of  accomplice 8  6 

as  to  construction  of  constitution 30  127 

as  to  improper  remarks 10  20 

on  uncorroborated  testimony  as  affect- 
ing testimony  of  accomplice 7  5 

SALE 91 

properly  charged  in  indictment 48  220 

of  liquor  a  misdemeanor 49  221 

may  be  shown  in  any  quantity. .......  49  222 

as  constituting  nuisance   71  323 

held  not  entrapment 91  410 

to  agents 91  411 

to  agent  not  entrapment 35  144 

other  than  by  defendant  held  admissible  35  148 

SEARCH  AND  SIEZURE 92 

unreasonable  may  be  prohibited  by  Con- 
gress      80  364 

without  process  90  405 

not  to  be  made  on  one  illegal  sale 96  426 

of  papers  unlawful 97  428 

of  private  dwelling 97  429 

proper  or  not  within  discretion  of  court  99  433 

reasonable  or  unreasonable 99  434 

does  not  rest  on  right  to  inspect 101  436 

sale  will  be  made  unless  good  cause  can 

be  shown 101  437 

while  under  arrest  101  438 

right  of  seizure  to  be  determined 102  440 

to  be  made  at  time  of  violation 102  441 


248  GENERAL  INDEX 

Page  Paragraph 
made  of  vehicle  when  operated  without 

consent  of  owner 102  442 

does  not  mean  violent  seizure 103  443 

of  papers,  books,  etc 103  444 

made  of  person  at  time  of  arrest 103  445 

made  without  warrant 103  446 

or  unreasonableness  of  search  a  judicial 

question 31  129 

will  not  be  interfered  with  because  of 

absence  of  owner 104  447 

consented  to  by  wife 105  450 

SEARCH  WARRANT  104 

must  be  based  upon  information  legally 

obtained    95  422 

under  act  of  June  15,  1917 104  448 

affidavit  held  insufficient 104  449 

amendment  by  telephone  not  proper.  .  .   104  449 
which  is  illegal  makes  evidence  obtained 

thereby  inadmissible    105  453 

will  not  issue  on  information  and  belief  105  454 
for  intoxicating  liquor  does  not  require 

same  particularity  as  in  other  searches  106  456 
invalid  because  of  insufficient  descrip- 
tion    105  455 

need  not  set  out  that  property  was  used 

in  committing  felony  106  457 

must  not  be  changed 106  458 

need  not  set  out  name  of  party 106  459 

not  to  be  based  on  probable  cause 106  450 

sufficient  as  to  description 107  481 

returned  not  essential   107  462 

107  464 

at  night 107  465 

not  necessary  107  466 

served  in  time,  question  for  jury 108  467 

held  invalid  if  issued  without  oath 108  469 

must  be  verified 108  469 

not  necessary  to  make  liquor  admissible 

found  on  person   35  150 


GENERAL  INDEX  249 

Page  Paragraph 
Sections  of  revised  statute  repealed  and  not 

repealed  by  act 86  387 

Section  15  of  Lever  Act  repealed 87  388 

section  3450  not  repealed  87  389 

Section  1  of  18th  amendment  is  a  mandate. .     30  124 
section  3450  not  repealed  by  Section  26 

of  the  act  118  522 

twenty-five,  Title  II,  does  not  refer  to 

lawful  possession 79  359 

SENTENCE   108 

after  term  is  final 108  471 

is  discretionary   108  472 

one  judgment  on  conviction 109  473 

for  more  than  one  offense 109  474 

not  to  be  changed 109  475 

for  three  offenses 109  476 

suspended    110  477 

unauthorized  does  not  affect  all  counts 

of  indictment 110  478 

may  be  corrected 110  479 

running  concurrently 110  480 

Settlement  of  Bill  of  Exceptions 16  60 

Silence  as  an  admission 9  15 

Signing  of  recognizance  not  necessary 13  41 

of  bail  necessary 13  41 

Scope  of  argument 11  24 

Single  sale  does  not  warrant  seizure 96  426 

State    authorities    will    release    on   Federal 

writ  of  habeas  corpus 39  171 

statute  may  be  enjoined  54  244 

tax  held  an  irreparable  injui-y 55  248 

court  prosecution  as  a  bar 14  49 

may  pass  laws  not  in  conflict 20  86 

laws  must  follow  federal 21  89 

has  power  to   make   more   drastic   law 

than  federal  21  89 

court  may  act  against  persons  accused 

by  federal  authorities   21  92 

law  may  punish 22  93 


250  GENERAL  INDEX 

Page  Paragraph 
law  not  in  conflict  because  of  previous 

enactment   22  94 

law  valid  if  consistent  with  federal  law     22  95 
had    power    over   sale    of    intoxicating' 
liquors  under   constitutional   amend- 
ment 10  30  125 

court  conviction  not  enough  to  warrant 

forfeiture   37  159 

Statute  of  limitations  runs  from  first  act  of 

conspiracy 14  44 

does  not  run  against  fugitive 14  45 

not  repealed  by  pure  food  act 14  46 

repealed  is  a  bar  if  charge  is  under  it .  .     14  47 
improperly   construed,   injunction    may 

be  had  58  262 

need  not  be  averred  in  indictment 43  194 

Stills  need  not  be  returned 89  400 

STORAGE    110 

for  private  use 110  481 

of  liquor  in  warehouse 110  482 

Sufficiency  of  evidence  to  convict 110  483 

111  481 

by  circumstantial  evidence Ill  484 

by  failure  to  deny  incriminating  accusa- 
tions    Ill  485 

by  finding  mash Ill  486 

111  487 

Supplemental  charge   59  268 

Sweet  cider  defined 33  139 

Sobriety  held  irrelevant 18  73 

Surety  may  arrest 13  42 

TAX 112 

confiscatory 112  489 

113  496 
defined  112  490 

114  503 

designated  as  penalty 113  491 

does  not  apply  to  sweet  cider 113  497 

and  penalty 113  498 


GENERAL  INDEX  251 

Page  Paragraph 

and  penalty  distinguished 75  338 

payer  entitled  to  hearing 113  499 

provision  Section  3296  remained  in  force 

until  Volstead  Act  was  passed 113  494 

provision  Section  3296  not  repealed.  .. .   112  491 

payable  on  contingency 112  492 

not  to  be  made  on  right  to  o^vn 113  495 

exceptence  not  compelled  by  equity ....     52  233 

and  fine  do  not  both  lie  for  one  violation    83  383 

remitted    114  500 

on  wholesale  dealer 114  502 

Technical  books  held  admissible  17  70 

Telegram  not  received  held  admissible 36  153 

Testimony  of  accomplice 8  8 

uncorroborated  8  7 

competent   8  8 

of  magistrate  admissible 9  16 

Title  II,  Section  3-6-11 92  412 

Time  for  filing  Bill  of  Exceptions 15  52 

extended  to  file  bill  of  extension 15  53 

Two  cases  similar  as  a  bar 14  48 

statutes  may  be  violated  by  one  act 28  116 

TRANSPORTATION  114 

across  one  state  to  another 114  504 

act  of  March  3,  1917 115  505 

arrest  for  transporting  before  crossing 

state  line 115  506 

arrest  outside  of  state 115  506 

authority  given  by  permit  to  transport.   115  508 

company  not  a  common  carrier 119  424 

for  private  use 117  513 

from  Canada  to  United  States 117  514 

from  warehouse  not  illegal 119  529 

in  State  of  Washington  held  illegal 119  525 

may  be  forbidden  by  Eighteenth  Amend- 
ment       31  130 

must  be  voluntary 119  527 

need  not  be  shown 49  223 


252  GENERAL  INDEX 

Page  Paragraph 
not  illegal  if  liquor  is  transported  with- 
out knowledge  118  519 

shown  by  circumstantial  evidence 115  510 

Transhipment  prohibited 119  526 

Traffic  by  selling  liquor 49  222 

Uncorroborated  testimony  of  accomplice...  7  5 
United  States  officer  immune  from  arrest,  if 

acting  by  order  of  court 11  26 

Unreasonable  search  extends  to  garage 95  421 

Variance  in  indictment  50  225 

Venue    112  488 

Verdict  will  not  be  impeached  by  affidavit 

of  jurors   66  304 

Violation  of  law  in  presence  of  officer 12  32 

Violation  before  act  could  become  effective.  87  391 
Voluntary  surrender  does  not  affect  right  to 

writ  of  habeas  corpus 40  175 

Volstead  Act  did  not  create  equity  power . .  58  261 
War  time  prohibition  act  does  not  contra- 
vene Amendment  10 31  131 

act  not  repealed 88  392 

"Warrant  necessary  to  arrest 11  27 

need  not  be  exhibited 11  29 

not  necessary  to  arrest  party  carrying 

liquor  12  30 

not  necessary  when  felon  has  been  com- 
mitted    12  33 

"Whiskey  as  a  property 99  432 

tags  to  be  admitted  though  not  identified  36  155 
"Whiskey    found    in    shop    of    defendant's 

brother  held  admissible 36  154 

"Wine  defined   32  132 

"Wisdom  of  legislature  not  subject  to  inquiry  27  113 

WITNESSES   120 

not  disqualified  because   a   member  of 

dry  league 120  530 

may  be  asked  about  inconsistent  state- 
ments      42  184 

may  be  asked  about  interest 42  185 


GENERAL  INDEX  253 

Page  Paiagraph 
need    not    be    contradicted    to    be    im- 
peached        42  186 

may  be  asked  about  drinking  for  pur- 
pose of  impeachment  42  188 

may  be  asked  about  previous  conviction    42  189 
may  be  used  to  sustain  witnesses  threat- 
ened with  impeachment 42  190 

impeached  may  testify  that  he  was  in- 
nocent at  previous  conviction 42  191 

belief  in   divinity   as   affecting   compe- 
tency    120  531 

conviction  of  crime 120  532 

examination  as  to  third  degree 120  533 

good  character 120  534 

impeachment    121  536 

impeachment  of  own  witness 121  537 

leading  questions 121  538 

no   cross   examination   on  illegally   ob- 
tained evidence   121  539 

previous  arrest 121  540 

proof  of  inconsistent  statements 121  541 

proof  of  previous  convictions 121  542 

recall  discretionary    122  543 

refreshing  collection 122  544 

testimony  false  in  part 122  546 

when  failure  of  defendant  to  testify  may 

be  considered 122  547 

wife  of  defendant  testifying  against  co- 
defendant    122  548 

not  compelled  to  testify  against  self 123  549 

not  to  be  interpreted  by  jurors 123  550 

scope  of  cross  examination 122  545 

Written  and  printed  exhibits  in  Bill  of  Ex- 
ceptions        1^  ^2 

instructions  may  be  used 59  271 

Wrong  construction  of  statute 58  262 


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